About TOS and Disclaimers Help

[butterfly Braveheart]

Didn't know where to put this, but I assumed Mesh Forum would be used more, so maybe more people would see this thread :) 

It basically has everything to do with any creation in SL. Full perm that you've made and others have made. I've boughten a ton of stuff, some with their Tos and disclaimers saying I can't do this and that and blah that. And, some doesn't even have them. 

So, I guess maybe a few questions in one thread, I'll ask here. 

Was curious if something you buy like say a table (sorry I work better with examples to understand), its full perm, and their disclaimer (or whatever you want to call it, legally?) states that you can't sell this item with full perms (That's understandable), or no copy no trans, etc. Something specific, or you can't sell this as a freebie. You can't take this out of the game, etc.

My question is there is a ton of notecards with everything you buy Full perm. Are you at fault if you think you know what it says and you mess up after selling it to a few people? I assume if you buy something online or even SL, its yours. No you don't have the original, but all this copyright things are greek to me. I've never had to deal with all this copyright and DMCA (Please don't assume, I've not done anything wrong. I'm just wanting to know what the world it is meaning down to the T). I know filing a claim for DMCA is about 10 usd or something cheap like that.. 

I don't really know how to have people understand what I'm meaning in forum, chat based is nicer, but I'll deal with it :P

And, was curious if Sl ever did end, like they weren't making any new money for this community/game, and they ended it. Hopefully we'd all get something that stated SL would be closing. But anywho, if SL was no more, would the people's TOS/Disclaimer still be legal? Or is it legal now? 

I know people have seen websites and facebook disclaimers and all that other stuff, and I don't really think for (facebook disclaimers) its legal, because its online.... I don't know I just don't get any of the tos, disclaimers, you can't do this after you've bought this and dmca and all that ego thing....

 

If someone can understand all that, I 100% congratulate you lol. I can't explain myself too well because I don't know how to say it correctly -.-

[Sassy Romano]

If any terms were not subject to inspection before the sale and were merely included in the package, they would most likely be rejected from a contractual perspective, just as software shrink wrapped licenses are usually invalid.

However, that said, whatever the terms of use say are only as valid as the degree of enforcement that the creator of that item chooses to employ.

Marketplace misses a trick because there's no way to present the info about a TOS and validate that the customer has agreed to it prior to purchase.  You can't just assume that because it's there that "by reading this you agree".  What if they don't understand it, or couldn't be bothered.  If they didn't read it, then they clearly haven't "read it and agreed"!.

There is an opportunity for a "show licence and agree" process before the BUY option is enabled but again, something simple, something of value, so it won't be done.  Lets have more Facebook "like" buttons instead.

Anything can be written down but unless it's enforced , it's all rather pointless!

[butterfly Braveheart]

ok, I can understand that. Some parts I don't really lol not on your part just mine. I assume I'm like the only person in SL that worries that much about other people's disclaimers on creating items that are yours but you are using their textures, or whatever it is. I just don't want to get in trouble. Its a game after all, but I guess some legal things are in the game as well, from LL and from indivuals too

[So Whimsy]

You are bound by the End User License each full perm creator has as long as it's in plain view, such as on their product page, and in their store.

If you go against this agreement you can and will most likely be DMCA'd. 

If you do not agree with a creator's license, don't purchase from them. If you do purchase their stuff however, then follow their rules, or you will get in trouble. 

If you're not sure about any part of someones license, contact the merchant and they will explain it to you. Do not just assume but cover your bases.

[Sassy Romano]

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Syn Anatine wrote:

You are bound by the End User License each full perm creator has as long as it's in plain view, such as on their product page, and in their store.

If you go against this agreement you can and will most likely be DMCA'd. 

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and the other person can just dispute it.  Then you have to prove that the contract was enforceable.  Then again, US law is so screwed, it's the only country that found in favour of Apple when the rest of the worlds law courts had sense and said Apple were wrong.

The UK has "Unfair Contract Terms Act" which rules out a lot of the malarchy that goes into some bull**bleep** contracts and if one part of a contract is found void, the whole contract becomes void, thus those bull**bleep** terms are all void.

Simply plopping up a notice doesn't really confirm that the purchase read or understood it, hardly what one would constitute as fair.

It's really back to what I said earlier, unless someone actually has the means (apart from filing bogus "wannabee DMCA takedowns" instead of proper legal enforcement, any set of terms are moot.  Just as they are everywhere in RL too!

[Sassy Romano]

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butterfly Braveheart wrote:

I assume I'm like the only person in SL that worries that much about other people's disclaimers on creating items that are yours but you are using their textures, or whatever it is. I just don't want to get in trouble. Its a game after all, but I guess some legal things are in the game as well, from LL and from indivuals too

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You're not the only person, most people (who can read and understand the sentiment and agree and who want a working relationship with a supplier) will honour the terms but in SL, that's pretty much what it is here, mostly honour.

There are some who have the financial means to take a case to court but in the main, taking a case to court over a few hundred L$ is laughable.

This becomes a contract dispute... settled in a law court.

[Dresden Ceriano]

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Sassy Romano wrote:

Marketplace misses a trick because there's no way to present the info about a TOS and validate that the customer has agreed to it prior to purchase.  You can't just assume that because it's there that "by reading this you agree".  What if they don't understand it, or couldn't be bothered.  If they didn't read it, then they clearly haven't "read it and agreed"!.

There is an opportunity for a "show licence and agree" process before the BUY option is enabled but again, something simple, something of value, so it won't be done.  Lets have more Facebook "like" buttons instead.

Anything can be written down but unless it's enforced , it's all rather pointless!

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I believe you have this backwards.  Say you walk into a store in RL that has a sign posted which clearly states that there are no refunds on clearance items... any sane court would find that to be suitable notification of the terms under which you've purchased the item, should you choose to sue them for a refund, regardless of whether you actually read the sign or not.  The onus is on the buyer to read the information provided prior to purchase (the keyword being prior)... ignorance is no defense.

That being said, someone who wishes to use such items without the headache of legal issues should follow those terms in the strictest sense of the word, as though their objective is not to end up in court from the start.

...Dres

[Dresden Ceriano]

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Sassy Romano wrote:

Simply plopping up a notice doesn't really confirm that the purchase read or understood it, hardly what one would constitute as fair.

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A lot of digital content is made available for use under CC licensing... are you suggesting that simply not reading the license is enough to enable people to not abide by it?

...Dres

[Sassy Romano]

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Dresden Ceriano wrote:

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I believe you have this backwards.  Say you walk into a store in RL that has a sign posted which clearly states that there are no refunds on clearance items... any sane court would find that to be suitable notification of the terms under which you've purchased the item,

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"Clearly displayed" is one of those things that gets disputed for things like parking notices all the time.  Different people define clearly displayed in different terms.  Again, NONE of this hold unless decided by a court.  I'm as bloody minded as the next, often contemplating putting a parking ticket in the windscreen facing with the payment fee/time/date stamp facing onto the dashboard.  The ticket is clearly displayed, the fact that the parking attendant can't read one side of it isn't my issue, nowhere does it state which way up the ticket must be or what must be visible, only that it be "clearly displayed".

Moot, all moot, take it to court, let the court decide.  Got the funds to take it to court?  That's my point far more than whether the terms are there or not.  People blow all kinds of words around here but not a single bit carries unless tested.  Test it in court, not in SL court of armchair lawyers.

As I said, the RIGHT way to do this is to sell inworld only to those who have first agreed to the terms, either via group membership or other constraint.  Marketplace COULD have offered such a method but fails...again... to do something useful.

Were I in the business of selling such items, I would not sell them via MP because it doesn't offer suitable controls over licence acceptance and subsequent formation of a contract.  It could so very easily... but doesn't.

[Sassy Romano]

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Dresden Ceriano wrote:

A lot of digital content is made available for use under CC licensing... are you suggesting that simply not reading the license is enough to enable people to not abide by it?

...Dres

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Nope, people abide because they choose to.   No effect if they break the agreement and it's not enforced.  I'm not going to repeat that. 

[Dresden Ceriano]

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Sassy Romano wrote:

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Dresden Ceriano wrote:

A lot of digital content is made available for use under CC licensing... are you suggesting that simply not reading the license is enough to enable people to not abide by it?

...Dres

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Nope, people abide because they choose to.   No effect if they break the agreement and it's not enforced.  I'm not going to repeat that. 

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My point is that it doesn't take a signed contract to obligate a person to follow the letter of that license.  Should they be taken to court over it, they'd lose.  Enforcement is another subject entirely, of which I've no comment, because it simply doesn't matter when discussing the actual legality of end user licensing agreements.

...Dres

[Cathy Foil]

My advice would be if you are not quite sure what the sellers TOS are exactly contact them before you buy it and ask them to clarify them.

Personally I like the way IMVU handles full perm or what they call derivable products.  Here's an example: The original content creator creates a pair of mesh shoes and uploads them to IMVU for L$300 as derivable items.  The buyer buys them for L$300 and then adds their own touches and puts them up for sale for L$350.  If someone buys the L$350 pair the original content creator automatically gets their cut of L$300 off every pair and the first buyer gets L$50.

Now the first buyer can set their shoes as derivable as well and someone could buy it and add their own touches and sell it for L$400.  When those shoes are sold the original content creator gets L$300 from each pair sold and the second gets L$50 and the third gets L$50.

This can go on and on but the original content creator always gets their L$300 and the shoes can never be sold for less than the purchase price.  Now of course I have simplified things a bit since IMVU takes a cut and they don't use L$ dollars.

I like this system because you don't have to worry about TOS agreements.  It encourages creativity and even if the buyers don't change a thing and just sell it like it is the original content creator always gets their fair cut.

There are more things wrong with IMVU than not wrong but I do like the way they do some things and wish LL would consider adopting some of them.

 

[LepreKhaun]

WARNING: Path is is through a thorny thicket from this point on...

[Nalates Urriah]

In the US courts have pretty consistantly upheld shrinkwrap licencing and click to use TOS.

There are things people put in their licenses that cannot be enforced, so some significant number of licenses have been overturned. So, trying to say a particular license or the entire group is some certain way can't be accurate. There are too many variables. A well written shrinkwrap or TOS is enforcable and a poorly written one is likely to have parts thrown out.

In Second Life the cost of damages is usually small and not worth the effort to processcute. But, US law provides for statutory damages ranging from US$200 to $150,000 and where in that range things fall is up to the judge based on some conditions; knowingly, willful, malicious... or one can go for actual damages. But the 'actual' must be proven.

An agreement does not end because a business closes or a person dies. However, at some point their may be no one to enforce the agreement. Whether there is or not, your rights were established at the time the agreement was made. Without specific clauses for '...in the case of...' the agreement remains unchanged. So, they are binding while you are a live whether the other party is or not. And after you die only it only matters if your heirs will have some value from the agreement.

The basic rule is always how much money is involved? If it is enough to interest an attorney, things can get messy.

Keep the agreements you make and respect other people's rights.

[Astrid Kaufmat]

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My question is there is a ton of notecards with everything you buy Full perm. Are you at fault if you think you know what it says and you mess up after selling it to a few people? I assume if you buy something online or even SL, its yours. No you don't have the original, but all this copyright things are greek to me.

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If you buy something it's not yours but it follows the SL TOS and the authors' copyright.

It's more and less like when you buy a CD and you often see on its back that you couldn't play it in a public event or in a club and so on.So you could play it at home but not in public to get your profit by using it.

More and less another example that could fit is the commodate : you'd get your home with a gratuitous loan, you can use it but you couldn't resell it nor rent it to third parts.

As they said above look at the copyright before you use, if you don't like don't use.

If you want some copyright free site there are quite a few around the net, also some that paying just 30 - 40 bucks would assure you legal cover  all over the world.  Another wayto make your projects been covered is to put them on 3d sites where artisyts sell their stuff, so even if used in SL they have to respect that tos as well you may open an account there and it would be like a living proof of your job.