Does LL handle CC BY content appropriately ?

[Perrie Juran]

If Linden Lab has made the avatar available in the Wiki for the purpose of content creation in and for SL, then that is IMPLIED CONSENT to use it.  It is just as valid because you would be using it in a manner as contemplated by the Service:  Creating Content FOR Second Life.

If I give you the keys to my car and tell you that you can drive it, it implies that you can do with it everything involved unless I tell you otherwise.  You can turn on the radio, change the station, sound the horn, use the wipers, etc, etc, etc. 

Not everything has to be spelled out in black and white

[Madelaine McMasters]

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Drongle McMahon wrote:

The ISSUE for me is that even though they have made this rule and many of us are complying -- there are just as many blatantly stolen items up on the Marketplace and fraud is rampant

.

Indeed. Does the ToS really absolve them of all liability if they step beyond the scope of protection by DMCA? Would it really be plausible for them to claim ignorance of the extent of violations?

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I think this has bearing on your question, Drongle...

http://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc.

[Dresden Ceriano]

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Perrie Juran wrote:

If I give you the keys to my car and tell you that you can drive it, it implies that you can do with it everything involved unless I tell you otherwise.  You can turn on the radio, change the station, sound the horn, use the wipers, etc, etc, etc. 

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Yet, if they wreck that car, they'd be held responsible for the damages.

...Dres *has seen some avatars that should be prosecuted for manslaughter*

[Drongle McMahon]

"I think this has bearing on your question..."

Yes it does. However, it looks like that was settled out of court while under appeal, which I think means the question was not legally determined there. Also, I don't think that was a question of activity being outside the scope of the safe harbor provision, was it?

The relevant part of the DMCA* is (sorry, I don't know the official way of formatting legal citations) Title II, Section 512,  ©(1)(B), which requires that the service provider ".. does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity;" I suppose we can't even consider that until we know exactly what LL may be planning tom do with their new rights. The "directly attributable" may be the significant point. If it's going to be just taking a commision, then In guess it stays within the safe harbor, since that's already the situation with the marketplace. I suppose that must be considered indirect? This does seem the most likely, all things considered.

* http://www.copyright.gov/legislation/pl105-304.pdf

[LepreKhaun]

Let's see, in the past year or so, we know of:

1. A leaving of many old-time Lindens, including the CEO.
2. A diminishing user base resulting in a smaller revenue stream.
3. Acquisition and production of new properties (Blocksworld, Patterns, Desura and "More Coming Soon!") 
4. The integration of commercial ads into here (a site that is rated well within the top 4000 in the world btw). 
5. A change of the ToS giving LL the rights as discussed.
6. [ETA] Integration into social media sites such as FaceBook.

Hmmmm, maybe SL is being coveted by Bill Gates, eh?

[Perrie Juran]

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Dresden Ceriano wrote:

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Perrie Juran wrote:

If I give you the keys to my car and tell you that you can drive it, it implies that you can do with it everything involved unless I tell you otherwise.  You can turn on the radio, change the station, sound the horn, use the wipers, etc, etc, etc. 

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Yet, if they wreck that car, they'd be held responsible for the damages.

...Dres *has seen some avatars that should be prosecuted for manslaughter*

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There are warrants for my arrest on thirty SIMs for "Unusual Cruelty to a Prim." 

They stem from my early days when I was first learning how to build.

I didn't know that Prims have feelings too.

[Madelaine McMasters]

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Drongle McMahon wrote:

"I think this has bearing on your question..."

Yes it does. However, it looks like that was settled out of court while under appeal, which I think means the question was not legally determined there. Also, I don't think that was a question of activity being outside the scope of the safe harbor provision, was it?

The relevant part of the DMCA* is (sorry, I don't know the official way of formatting legal citations) Title II, Section 512,  ©(1)(B), which requires that the service provider

".. does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity;"

I suppose we can't even consider that until we know exactly what LL may be planning tom do with their new rights. The "

directly attributable

" may be the significant point. If it's going to be just taking a commision, then In guess it stays within the safe harbor, since that's already the situation with the marketplace. I suppose that must be considered indirect? This does seem the most likely, all things considered.

 

*

http://www.copyright.gov/legislation/pl105-304.pdf

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Although the case was not taken to full resolution in the courts, the preponderance of the decisions in the case favored YouTube. I think it would be the same for LL. So long as any benefit that accrues to LL for the use of infringing material comes as the result of a business model constructed to benefit from legal content, and LL cannot be shown to have direct evidence of infringement (a DMCA takedown notice might be the only good proof), the "directly attributable" requirement will not be met.

It's not uncommon for deep pocket defendants to settle out of court by offering a nominal payment that scales from their predicted cost of continuing. You incur substantial legal fees, win or lose. That Google paid nothing suggests (if only weakly) that VIacom didn't think they had a chance of prevailing and Google didn't feel particularly threatened.

So, we don't have certainty, but we've got a hunch.

I could argue that it would be easier for YouTube to recognize pirated content than for LL. Popular music and movies are just that, popular. Much of the pirated content in YouTube is not heavily morphed, and is therefore easily identified. I can quickly find stuff on YouTube that's pirated, so can you. Yet I am not particularly knowlegable of the entertainment industry. Now, if I skim through the SL marketplace, I might spot a Mickey Mouse avatar or Barbie car and wonder, but for the most part I'm oblivious to whether a thing is an illegal copy.

A similar argument could be made that the barrier to entry for pirates is lower for YouTube than for SL. I think the French have levied "taxes" on YouTube like services and iPod like devices to account for the piracy that naturally flows from their use. Those taxes fund support for the arts, and were the result of lobbying by influential groups. There's no such political dynamic around SL, which is largely unknown to the world.

[Aspire Rang]

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Trinity Yazimoto wrote:

Dres, 

about the textures you buy in SL. LL has already a full licence on them, from the day the original creator uploaded them.

By purchasing them, you are given a full perm SL licence (if they are full perm of course), that mean you can copy them to infinite, you can modify them and you can transfer them. Generally, you cant transfer them as standalone, or with full perms but still, you can use them on your items and sell or share your items. The licence you have there is for use in SL only, and except if its said explicitely you cant use them outside SL.

And you are not forced to give credits for the texture, except for some rare exceptions.

This is not a CC licence. 

Now if you download them on your hard drive and you modify them. And then reupload them.

Till here its fine, you can do this, since you have a licence that allows you to modify (and you can't do this within SL since there are no tools for that).

So now you have the texture that you modified. Your texture modified is NOT the original texture. It's the original texture + YOUR modifications. you have created a derivative work.

Now you will upload it in SL. You dont have to worry about the full licence you maybe dont have for the original texture because LL has this licence already since the day the original creator of the texture uploaded it in SL. 

Instead, you should worry to know if you want to give LL a full licence on the derivative work you made. This is the only thing LL is aking a licence from you. They dont care about the licence on the original work, bec they have it already. And the modifications are yours. You are the only one who can decide you want or not give the full licence to LL on that.

For anything bought within SL (as long you are ok with the licence you have been given) there is no problem. LL has already a full licence on them, they wont ask a second time. Since the licence is clear and it says they wont give any credit, it doesnt the matter the name of who is uploading. what matters is that they can have a full licence, so at least one person uploading must have a copyright for being able to grant this licence to LL. If that's done, they consider they have already this licence and its fine.

......

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No,  you can't assume that.  Many creators have stopped uploading to SL specifically to prevent LL from getting those rights. LL can not take them retroactively for the vast majority of content in SL that was uploaded prior to the change in TOS... any more than users can expect to get away with chat log disclaimers in their profile. 

 

[Trinity Yazimoto]

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Aspire Rang wrote:

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Trinity Yazimoto wrote:

Dres, 

about the textures you buy in SL. LL has already a full licence on them, from the day the original creator uploaded them.

By purchasing them, you are given a full perm SL licence (if they are full perm of course), that mean you can copy them to infinite, you can modify them and you can transfer them. Generally, you cant transfer them as standalone, or with full perms but still, you can use them on your items and sell or share your items. The licence you have there is for use in SL only, and except if its said explicitely you cant use them outside SL.

And you are not forced to give credits for the texture, except for some rare exceptions.

This is not a CC licence. 

Now if you download them on your hard drive and you modify them. And then reupload them.

Till here its fine, you can do this, since you have a licence that allows you to modify (and you can't do this within SL since there are no tools for that).

So now you have the texture that you modified. Your texture modified is NOT the original texture. It's the original texture + YOUR modifications. you have created a derivative work.

Now you will upload it in SL. You dont have to worry about the full licence you maybe dont have for the original texture because LL has this licence already since the day the original creator of the texture uploaded it in SL. 

Instead, you should worry to know if you want to give LL a full licence on the derivative work you made. This is the only thing LL is aking a licence from you. They dont care about the licence on the original work, bec they have it already. And the modifications are yours. You are the only one who can decide you want or not give the full licence to LL on that.

For anything bought within SL (as long you are ok with the licence you have been given) there is no problem. LL has already a full licence on them, they wont ask a second time. Since the licence is clear and it says they wont give any credit, it doesnt the matter the name of who is uploading. what matters is that they can have a full licence, so at least one person uploading must have a copyright for being able to grant this licence to LL. If that's done, they consider they have already this licence and its fine.

......

---

 

No,  you can't assume that.  Many creators have stopped uploading to SL specifically to prevent LL from getting those rights. LL can not take them retroactively for the vast majority of content in SL that was uploaded prior to the change in TOS... any more than users can expect to get away with chat log disclaimers in their profile. 

 

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wether the TOS are retroactive or not has never been really defined. Even lawyers never could give a clear and firm answer about this.

but anyway, the full licence you have to give to LL for the use in SL is nothing new... it has been in the TOS for really long time before those new TOS. What has been new is that NOW they want this same licence for "whatever purpose" and "wherever they want".

So as long you use what you purchased within the SL plateform, inside SL you are fine.