When Linden Lab announced changes to the controversial section 2.3 of their TOS a lot of people cheered, until they read it properly, then a lot of people groaned and finally they scratched their heads trying to work out what it all means.
To this end the Second Life Bar association held a presentation last weekend and the legend that is Inara Pey has audio and transcripts of not one, but two presentations surrounding the TOS. Inara has broken the presentation down into a part about the changes to section 2.3 and a a part about the changes relating to the new skill gaming section of the TOS.
Now first of all, we’re a week away from the anniversary of the first controversial change to the TOS, August 15th 2013 was the fateful day. Then in July 2014 Linden Lab tried to address this issue and made some changes, what exactly changed? Well the presentation regarding section 2.3 explains that as best as it can :
The words on the list of the rights that you grant Linden Lab changed order. That’s really the most important thing that changed. And also a parenthetical limitation was added.
And this is really important to understand, and when I say it’s important to understand, it’s because I don’t understand it, and I don’t think anybody that I know, that I’ve talked to, really understands it. I write Terms of Service for a living, and I don’t understand what they did here. And I think this is where we need to talk about what they did and why they did it.
So there in a nutshell comes the first major issue with the change to the TOS, someone who writes terms of service for a living doesn’t understand what Linden Lab have done. Now at this point I should pause and point out that attorneys, judges, lawyers, solicitors and the whole legal profession make a living of not agreeing with each other over what something means, but in this case, there’s really no excuse for it to be such a confusing matter.
This isn’t to say that the TOS change in July is a waste of time, it might be more positive than people think, the problem is, nobody is really sure. The problem lies with the parenthetical limitation, so let’s take a look at that in action from the Second Life TOS :
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, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and sell, re-sell or sublicense (through multiple levels)(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)
The end part is the confusing area, does it apply to sublicense? Does it apply to sell, re-sell? Does it apply to everything that goes before it? Nobody knows! Now this is a game changer depending upon what it applies to, the SLBA presentation said that this could be brilliant :
This limitation limits their power to … it limits their power to activities on the service, which is something we were asking for, and it limits their ability to use your content to the creator’s permissions.
So if you have done something that indicates to Linden Lab that they can’t use your content. for instance, you have deleted it, or you have put restrictions on it; no copy or no transfer, this indicates what the permissions should be.
So this is a great limitation; it’s beautiful. But there’s a problem. And here’s the problem. Let’s go back. They changed the words in this list of rights; they changed the order.
The permissions system is not the only limitation placed on content, so that could come across as misleading. For example texture sellers will sell their textures full perms because that’s the permissions level that textures need to have applied to them in order for textures to be useful to an end user, but textures will come with a EULA specifying limitations above and beyond the Second Life permissions system. Linden Lab do recognise this in their terms of service section 2.7 to be fair.
The problem here is one of application. One really has to wonder if this is a deliberate move so that Linden Lab still have these overreaching rights but give the appearance that they have addressed concerns. I would like to think that they would not do that but I’m left wondering why they’ve produced such unclear terms, to get this into context let’s go back to pre-August 2013.
The pre-August 2013 terms of service was section 7.2, not 2.3, which demonstrates how big a change the August 2013 changes were, a lot of that was due to Linden Lab wanting a one TOS to rule them all for all their products. However let’s look at what 7.2 said :
You agree that by uploading, publishing, or submitting any Content to or through the Servers, Websites, or other areas of the Service, you hereby automatically grant Linden Lab a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content solely for the purposes of providing and promoting the Service.
I’ve bolded the last part because it exemplifies why there was absolutely no ambiguity with regards to what that applied to, whereas with the July 2014 change there’s such a deep fog surrounding what the parenthetical limitation applies to that I’m expecting Jamie Lee Curtis to make an appearance.
There’s a lot more in Inara’s transcript and I urge anyone interested in this issue to read or listen to the presentation on Inara’s site. However another issue has recently come to light, I covered this in another blog post but not from the TOS angle.
On July 15th Gamasutra carried a press release : Blocksworld Adds MY LITTLE PONY Sets. The press release explains how these products are available from the in app shop and contains the following information :
In addition to the MY LITTLE PONY and TRANSFORMERS character sets, Blocksworld’s in-app Shop features a broad range of original building sets, covering diverse themes – from outer space adventure, to medieval fantasy, cities, and much more. New sets are added weekly, so there’s always something new for players to enjoy.
MY LITTLE PONY, TRANSFORMERS and their associated characters are trademarks of Hasbro and are used with permission. © 2014 Hasbro. All Rights Reserved.
Now obviously I’m not privy to the terms of the agreement between Linden Lab and Hasbro and of course Blocksworld is a very different product to Second Life. However I doubt very much whether Hasbro would have agreed to the terms that Linden Lab demand from Second Life content creators. The deal also exemplifies that Linden Lab are happy to recognise the idea of limitations to certain products in their portfolio, as the Hasbro deal only applies to Blocksworld.
So the question remains as to why on earth Linden Lab needed to make the changes on August 15th 2013 in the first place. Why can these terms not apply to providing and promoting the Second Life service only? If the idea is to allow people to be able to easily transfer content to the new world then I’d urge Linden Lab to stop right now because that remains a massive can of worms that will almost certainly not end well. Content creators have sold content on the basis and premise of it being for use in Second Life only. Anything above that without agreement with all parties involved in the creation and provision of said content is not a path Linden Lab should want to tread.
If it’s simply to make it easier for Linden Lab to apply the TOS to all their products, then again they should think again because that’s clearly a problematic route. One of the major problems throughout this whole sorry episode has been Linden Lab’s refusal to engage in healthy discussion with their community. People simply do not understand why Linden Lab need these terms.
At the very least, Linden Lab should ammend their TOS again to make it clear what the parenthetical limitation applies to, that really should not be difficult.