Top Texture Site Forbids Its Content in Second Life After Linden Lab Makes Draconian Terms of Service Change (UPDATED)

Update, 9/12: Read this statement from Linden Lab here.

CGTextures, a very popular site for 3D textures, just announced that Second Life content creators can no longer use its texture files:

From 6 September 2013 you are no longer permitted to add our images to Second Life or other Linden Lab products. The use of textures downloaded prior to this date is allowed.

This is directly due to Linden Lab's recent changes to its Terms of Service:

[Y]ou 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...

SL content creator Jo Yardley brought this to my attention, and has written on her blog that this is a "Huge problem for all creators in Second Life". However, in practice, that's not exactly true. I'm not a lawyer, but I do know Linden Lab pretty well, so let me explain what's probably going on with this Terms of Service change:

• Linden Lab, which is in the business of making user-generated platforms, is trying to protect itself from potential lawsuits by making as broad a claim as possible. If they did not, it only increases the chances that a developer who made some content on a Linden platform that subsequently resembles content in an official Linden-made product could claim IP infringement.
• Linden Lab in its 10+ year history has never been plausibly accused of intentionally engaging in content infringement of its own users. (By plausible, I mean in a way that would stand up in court.) It's simply not in the company's interest to do so, because the repercussions would be catastrophic.
• However, content creators in Second Life often accuse each other of IP infringement, and as said above, Linden Lab is probably trying to protect itself from being dragged into those frays with this language.

All that in mind, most casual SL developers probably don't have to worry about the TOS change with their own textures. At the same time, if they're serious professionals, they should officially copyright register or trademark their content before uploading it in Second Life. Don't take my word for it, here's an actual lawyer explaining that very thing. [UPDATE, 10/7: To clarify, while registering the copyright and trademark of your IP is an extremely good practice for a number of reasons, note that it is NOT a remedy against the clause in question within Linden Lab's Terms of Service.]

And all that said, Linden Lab should probably add some language to their TOS which allays the fears of sites like CGTextures and developers like Jo Yardley.

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Comments

[Arioch]

Well, CGTextures are being a bit paranoid, but LL's wording of that part of the ToS is a prime example of how NOT to write a CYA. That paragraph offered nothing to LL. Instead, it caused drama and bad publicity that'll further harm the Lab's already bad reputation. This part of the ToS need to be rewritten yesterday.

[Scarp Godenot]

I would belive they had good intent except for the claim that they have the right to sell or resell or sublicense the images.

This is a flat out rights grab.

Maybe they are just stupid and don't know how to write a contract that protects them without taking away all our rights. I'll admit that is a possibility.

What they should do if they have good intent is to change the TOS to reflect those good intentions.

As it stands now, it is just lazy ass boilerplate rights grab language probably clipped by their lawyers from some other contract they found out there on the web.

I must say this type of thing angers me greatly. It is just another part of a growing trend that internet networking site providers are being more and more exploitative of their customers.

Why? Because they can get away with it.

Fairness be damned...

[Iris Ophelia]

Obviously I'm just speculating here but I suspect another important part of all this is that LL wants to be able to use user-generated content in advertising material, ads and pictures etc like they always have, without people trying to make claims against them if they see their item being used. That's always felt like sort of a grey area. You certainly don't need the permission of RL designers to wear their clothing in a publicity photo, but if you're holding up a print of someone's art... Or if the picture you're taking is more like a digital artwork in itself and one component of that is another person's artwork... I don't know.

I agree that they're probably just covering their asses with bad wording, and likely didn't expect sources like CGTextures to react the way they did. I'm skeptical they'll change it, and quite sure many people will keep using CGTextures either way. :\

[Jay]

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. The Lab doesn't plan on spending money on marketing and it doesn't care about CGTextures new policy. They are in the process of getting every last dollar out of Second Life, which includes monetizing the vast amount of valuable user created content. It's as simple as that. I love Second Life, but for the Lab it's nothing more than a business, and burying one's head in the sand isn't going to change anything.

[Arcadia Codesmith]

Unconscionable contract of adhesion. Using your content without compensation would expose them to liability regardless of how the TOS is worded. Any IP lawyer worth his salt would have a field day if they tried.

It's a failure as a CYA and it's a failure in public relations. Very Linden.

[2103]

@ Jay SL has been since day 1 a business, and a business to make money. It's the disillusioned sandboxers/crustys that bought into the "your world" motto.

[Wolf Baginski]

You're making too much of the US law on copyright registration. Yes, you get more damages, and you make it easier to prove a case, but it doesn't make anything that happens any less a breach of copyright law (This is a Berne Convention thing), and it doesn't change by one iota what the TOS allows Linden Research to do.

The problems, caused by such things as the way the internet works, and the practicality of removing copies from back-ups, are old enough to vote. Companies have worked out TOS documents that cover the issues. That is part of why I am suspecting incompetent lawyers.

Linden Research knows that "the Service" is worthless without the content, worthless without the right for some future purchaser to make that content available to users. If nothing else, should the new owner be unable to lawfully allow existing users to continue to use content that has been bought and paid for, the legal liability would be huge: think class action.

But avoiding that does not need them to be able to sell my work, without compensation, to anyone on the goddam planet.

[Wolf Baginski]

Incidentally, how does the new TOS interact with the use of streaming media. I can pay a fee to the appropriate collection agency, but what will the RIAA do when they see the TOS? Will they meekly agree that streaming is not an upload to the service?

I don't think that is very likely. It's not a bet I would make.

[Virginia / Xenon Darrow]

Unfortunately, you can blame the SEC for this - they started it when FB decided to go public, and could not produce assets - because they realized their only assets of value are information assets. I.e. people's content. And the SEC accepted that. VERY WRONG. NEVER SHOULD HAVE HAPPENED.

Until someone is willing to take fb, google, LL and every other idiot corp who has decided that they share IP on content to the Supreme Court, this will be treated as such.

I personally believe it is unconstitutional, but the way things work here, particularly with civil law - it has to be challenged and pursued. Through all the local, state, and appellates - up to the Supreme

Only the other big corps can afford to do that and they simply stop doing business with LL - it's why very few significant companies are in there anymore. I keep hoping some content producer will contact the ACLU and start the process.

As for me, I am an educator; I simply do not produce for SL anymore. I am in SpotOn 3D for the express reason that they respect IP rights. As do some of the other OpenSim projects. You should support those.

[Minty]

It's probably the 1st step toward what I call "the great hold up". LL changes the TOS to be the owner of the things created by users.

The second step will be to close SL before too much money is taken out off the game.

Then they will have our in game money and our creations and there will be nothing we will be able to do due to the TOS changes.