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.
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