The Second Life TOS – Even The SLBA Are Confused By It

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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SLBA To Discuss Second Life Terms Of Service Changes

SLBA In Second Life

Inara Pey reported last week that there would be an In-world legal presentation on the recent updates to the Lab’s Terms of Service. I’m not breaking any new ground here, this post is about exactly the same thing.

The extremely contentious and ultimately for many of us, disappointing, changes to section 2.3 of the terms of service will be discussed as well as the new skill gaming policy. However as the deadline for that has been put back to September 1st it may not be such a hot topic. Alternatively putting the deadline back to September 1st may make for a healthier and less frenzied discussion.

The SLBA discussion is scheduled for 10:am SLT on August 2nd and will be hosted by Agenda Faromet.

The discussion will take place in the SLBA court room, SLURL  : http://maps.secondlife.com/secondlife/Justitia/88/125/951

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Why The TOS Remains Problematic

Episode 13 of The Drax Files Radio Hour featured an excellent interview with Richard A. Goldberg. I covered it here : Second Life TOS – Why Bergs Should Collide. I’m not going to go over it all again but Richard made some excellent points on why the TOS was problematic, why Linden Lab should not need all the terms they require, why there should be limitations and he did all this in a very calm and rational manner. Ebbe Altberg should at least listen to what Richard A. Goldberg had to say and then he may understand more of what the issue is.

The Linden Lab blog post on the updated terms of service states :

As part of an update to our Terms of Service today, we have made a modification to further clarify Section 2.3. The updated section still provides Linden Lab with the rights that we need in order to operate and promote Second Life, so you will see that we have retained much of the language as the previous version. However, the updated section now also includes limits that better match our intended meaning, and we hope will assuage some of the concerns we heard about the previous version.

Now the problem arises with the words that have been left in. First of all let’s rewind a little and give Linden Lab some credit for the change they did make, but also let’s rewind further and see what the controversial section said before the changes of last August, a time when it wasn’t remotely controversial :

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’m struggling to understand why that is no longer suitable, it’s clear, it’s to the point and there’s no ambiguity as to whether it refers to the Second Life service or not. However let’s move on to the controversial TOS and break this down, again, first of all this part :

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)

Now that’s better than before because of the part about being with respect to Second Life, inworld or otherwise. That’s the big plus point from the change, the problem is with the next part of the TOS, which makes absolutely no reference to this limitation.

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New TOS Fallout – CG Textures Still Say No

Yesterday’s Linden Lab blog post about the new TOS has unsurprisingly generated a fair amount of discussion. I’ve looked again to see if I feel any different about the changes in the cold light of day and the answer is no. I still feel the TOS goes too far and asks for too much.

Over at Insert Funny Name Here, Second Life user and real life attorney Vaki Zenovka posts on the issue and summarises :

They moved “sell, re-sell, or sublicense (through multiple levels)” from the beginning of the list to the end of the list. And then they added a totally unclear parenthetical: “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)”.

That is all.

Vaki also pokes Linden Lab about their use of parenthesis in the new terms of service and points out that it’s unclear whether “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)” applies to sublicense, re-sell and sublicense or everything before the phrase “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)

In their blog post Linden Lab state :

First, the modified version limits our rights with respect to user-created content in Second Life by restricting our use “inworld or otherwise on the Service.” Additionally, it limits our right to “sell, re-sell or sublicense (through multiple levels)” your Second Life creations by requiring some affirmative action on your part in order for us to do so. This language mirrors the corresponding User Content License currently in Section 2.4, which has been part of the Terms of Service for years.  

This is all still very muddy. However have the changes convinced the likes of CG Textures to reconsider their decision to forbid new uploads of their content to Second Life or any other Linden Lab product? Jo Yardley asked CG Textures whether their stance had changed in light of the new TOS and the answer was still a no :

I’m afraid this does not change the situation for us. The new ToS still contains the words:

.. 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. ..

I can’t say I’m surprised about this as CG Textures are an outside of Second Life venture and therefore not as tied to the platform as many Second Life content creators.

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Second Life Terms Of Service Updated But Has Anything Really Changed?

Linden Lab today blogged : Updates to Section 2.3 of the Terms of Service. I’ll come to the changes shortly. The terms of service also include changes to section 3.3 of the terms of service. Previously this dealt with age verification for adult and mature content. They’ve now merged Skill Gaming terms in there too, which is sensible to be fair.

However I’ll be honest, I’m not really sure what has changed with regards to section 2.3 in reality. I can see some words have changed and there’s mention of Second Life but when it’s read as a whole it still looks very unfriendly to content creators.

Old 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, 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.”

New 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), 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 part I’ve bolded under the new TOS is the change, that appears to be it. This also only seems to apply to the terms prior to the statement about this being with respect to Second Life. The part after that still seems to give Linden Lab permission to do anything they like with user generated content and seems to contradict the limitation.

Continue reading “Second Life Terms Of Service Updated But Has Anything Really Changed?”

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