Updated LL TOS Claims FULL RIGHTS to ALL CONTENT

[RiftRaven]

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Toysoldier Thor wrote:

Hey Rodvik.....  Related to my last posting....

If you are really nervous on how you are going to explain to your Corp Board members that your new business model for Desura was based on getting critical content that LL would hi-jack from the SL Content Creators, let me provide you a solution to keep your business model more viable (so you dont have to tell the board that your idea has a major flaw).....

 

Why don't you consider OPEN NEGOTIATIONS with all the SecondLife Content Creators.... offer thing a VALUE PROPOSITION to be actually a willing and engaging partner to your new Desura Indie Game Developer business model. 

Develop an OPT-IN Content Licensing model for all SL Content Creators whereby LL will compesate / pay us content creators for LL to be ALLOWED to offer our content to these Game Developers?  Us content creators would have to meet certain criteria - i.e. it is our IP and not a license from another external IP owner.  We would have to agree to what ever terms set up for our content to be transferred into the Desura platform.  AND, LL would develop fair compensation to all us participating content creators.

How is that for a radical idea Rodvik.....  Ask Us To Participate.... Set Up The Terms To Participate.... and Pay Us Fairly To Participate.

 

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This sounds like a fair Propositon to me. I would be willing to build for desura. People would have a chance at building, properly made content for Video Game Engines. Further educating Second Life residents, in proper building practices.

[Perrie Juran]

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Drake1 Nightfire wrote:

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Spica Inventor wrote:

 

:smileywink:

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 I have been watching the MP numbers since the new Tos. The numbers have steadily risen. I don't see what leaveing will do. Yes, it will ease your mind, but will not hurt LL at all."

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What numbers?  The number of items on the Market Place or the Sales volume?

If you are referring to the number of items that would be no surprise.

The number of people who are just using templates to mass produce junk is horrendous.  Many of them are clueless and/or don't give a damn.  All they want to do is take the money and run.  Some of them think that there is no way that they could get in trouble. 

In many cases that could be true simply because how hard it would be for a copyright holder to pursue them.  But it can and has happened.  How many thousands of dollars in legal fees did that Shoe Designer (I can't think of her name now) incur when she got hit by DCMA take downs a year or two ago?

[Toysoldier Thor]

It would be unfair to label Drake1 as a Troll.  His postings do not fit the definition.  He has a different educated perspective of this issue and his posts are providing content into the topic that can be considered for debate.

A Troll is one that posts with the pure intent to emotionally inflame others by using insulting content that presents "ZERO" value to the actual discussion.

This was the case in the TOS thread on the ART forum where some basically said...

"Good riddance. Second Life needs less junk makers."

to the artist/creator community.

I understand Drake's opinions... I dont agree with his approach on how the situation should be resolved.  His is more "passive / reactionary" and others are more "aggressive / proactive".

[Chic Aeon]

Well I was going to add something to this but don't think I should so will keep quiet.

MEANWHILE, I want you to check out this comment to a post over on another forum . It is long, from a veteran of 3D modeling and gives a different perspective. Always good to have those.

 

http://community.secondlife.com/t5/Mesh/Please-Tell-Me-I-Am-Wrong-TOS-Woes/m-p/2237617#M23637

[Darrius Gothly]

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Toysoldier Thor wrote:

It would be unfair to label Drake1 as a Troll.  His postings do not fit the definition.  He has a different educated perspective of this issue and his posts are providing content into the topic that can be considered for debate.

A Troll is one that posts with the pure intent to emotionally inflame others by using insulting content that presents "ZERO" value to the actual discussion.

This was the case in the TOS thread on the ART forum where some basically said...

"Good riddance. Second Life needs less junk makers."

to the artist/creator community.

 

I understand Drake's opinions... I dont agree with his approach on how the situation should be resolved.  His is more "passive / reactionary" and others are more "aggressive / proactive".

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Seconded!

[RiftRaven]

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Toysoldier Thor wrote:

It would be unfair to label Drake1 as a Troll.  His postings do not fit the definition.  He has a different educated perspective of this issue and his posts are providing content into the topic that can be considered for debate.

A Troll is one that posts with the pure intent to emotionally inflame others by using insulting content that presents "ZERO" value to the actual discussion.

This was the case in the TOS thread on the ART forum where some basically said...

"Good riddance. Second Life needs less junk makers."

to the artist/creator community.

 

I understand Drake's opinions... I dont agree with his approach on how the situation should be resolved.  His is more "passive / reactionary" and others are more "aggressive / proactive".

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I don't appreciate being called human junk. At all. :smileyvery-happy:

[Dartagan Shepherd]

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Chic Aeon wrote:

 

MEANWHILE, I want you to check out this comment to a post over on another forum

. It is long, from a veteran of 3D modeling and gives a different perspective. Always good to have those.

http://community.secondlife.com/t5/Mesh/Please-Tell-Me-I-Am-Wrong-TOS-Woes/m-p/2237617#M23637

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Good reference. We've been primarily focused on the ethics here which is bad enough. That the new TOS makes it prohibitive to work with clients now, or for companies to work with their own content in SL is also a very big deal.

I know Rod said the "hobbyists won". More accurately is that LL lost every market but the hobbyist. Disclaimer that it's Rod's definition of hobbyist here, the actual truth is that the people earning incomes here are not hobbyists, they're professionals.

Boneheaded moves like this are why they continue to lose the business applications of SL. It does show the mentality of management though. Silly hobbyists, give us your rights, shut up and go play.

[Toysoldier Thor]

So there has been a lot of comments / opinions regarding how valid / enforceable the LL TOS actually is if challenged in court.  So far more of the thread opinions as well as the recent survey of opinions have sided with the belief that the LL TOS would not hold water in a court of law.

With respect to this, there is related thought on past challenges to the LL TOS and how LL lost in that challenge as it continues to relate to all us creators:

Apparently there was litigation in 2006 whereby Bragg sued LL for access to his account that LL removed.  From what I read, Bragg won the case by settling out of court with LL.  So we would not know a final legal ruling on a SL account holder's rights vs. the LL TOS, but that a major factor going into the eventual settlement favoring Bragg seemed to be a previous court that ruled that parts of the SL TOS were unenforceable due to it being an unconscionable contract of adhesion.

 

So what is "Contract of Adheasion"? 

The link below explains it quite well and explains why these types of contracts (also commonly referred to as "Boilerplate" Contracts or "standard form" contracts) often could be considered unenforceable in a court of law because of some restrictions these contract place on the party that didn't write the contract.

http://en.wikipedia.org/wiki/Contract_of_adhesion

Some of the factors I read that seem to relate to the situation that the LL TOS has imposed on us residents include:

The contract was a forced "Take It or Leave it" scenario whereby the user party has no say to negotiate parts of the contract.

Similar to this would be that the contract exploits an unequal power relationship (such as us content creators having a well established virtual store / art gallery within the SL service with all our content inside the SL service and LL forcing us to accept all the terms of the new version of the TOS or else we cannot access our investment on the SL grid - even if we do not fundamentally agree to the new terms).

So then what did the courts mean when they ruled that parts of the LL TOS was not enforceable because it was an unconscionable contract of adheasion?

That same wiki... describes this term as:

Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them."

So this seems to tell me personally in my own non-legal brain that its further evidence the LL TOS would fail in court related to Section 2.3 if challenged in court.  Of course... that is a big "IF" unless there was possibly a class action suit against LL to stop LL if they have had plans to start using out content for any purposes other than what was described in previous versions of the TOS whereby intent was much more clearly spelled out.

JUST SOME THOUGHTS / OPIONS  BY TOY who has NO LEGAL EXPERTISE to base these thoughts on.

 

What are the thoughts from others?

[Drake1 Nightfire]

I've been saying since the start of this that the new ToS isn't leagal. Somehow that makes me a troll in some eyes..  Thanks for the support from both you and Darrius.

[Dartagan Shepherd]

Thoughts on that later ... must beat some distractions off with a stick.

Just a reminder that Hamlet put up a poll and article and that boy is always in need of reality doses.

http://nwn.blogs.com/nwn/2013/10/second-life-tos-survey.html

[Alicia Sautereau]

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Drake1 Nightfire wrote:

I've been saying since the start of this that the new ToS isn't leagal. Somehow that makes me a troll in some eyes..  Thanks for the support from both you and Darrius.

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Your not alone, I can`t believe something like this can be legal, no matter how you turn it heh

[Perrie Juran]

Be very careful when citing Bragg.

The Court rulings in Bragg dealt with narrow and specific issues that related to the arbitration rules.
  http://en.wikipedia.org/wiki/Bragg_v._Linden_Lab

LL was arguing that Bragg was not entitled to his day in Court.  The Court ruled otherwise.

After that LL 'settled' with Bragg.  That did not settle the legality of the other issues.  As is common, LL may have decided it was cheaper to settle than to fight.  It does not mean they wouldn't have won on the other issues.

As far as the new TOS being a contract of adhesion, the question has been asked if the new TOS applied to past content.  I don't think it does.   I myself don't read any language that claims it.  If LL said you could only access the service by granting us rights to your old content, that would be a contract of adhesion.  I'm skeptical that the new TOS could be considered such.  Nothing compels you to upload new content.

[Perrie Juran]

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Drake1 Nightfire wrote:

I've been saying since the start of this that the new ToS isn't leagal. Somehow that makes me a troll in some eyes..  Thanks for the support from both you and Darrius.

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I don't think you are a Troll.

I just think you don't understand "content rights."

Do you understand the difference between exclusive and non-exclusive rights?  Do you understand the difference between a limited and an unlimited right?  With all due respect, so far I have not read anything in your posts that shows that you do.

Comparing granting someone license to use your digital creation to granting someone the right to commit murder?  Really now?  Do you have any concept of what kind of an apples and oranges comparison that is?

 

ETA:  My first thoughts on this when I read it was that it could not be legal.  But the more I thought about it and read people's comments the more my opinion changed.  Of course, I am not a lawyer.  But applying my limited knowledge of copyright laws, yes, I do think this may very well be legal.

[Alicia Sautereau]

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Perrie Juran wrote:

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Drake1 Nightfire wrote:

I've been saying since the start of this that the new ToS isn't leagal. Somehow that makes me a troll in some eyes..  Thanks for the support from both you and Darrius.

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I don't think you are a Troll.

I just think you don't understand "content rights."

Do you understand the difference between exclusive and non-exclusive rights?  Do you understand the difference between a limited and an unlimited right?  With all due respect, so far I have not read anything in your posts that shows that you do.

Comparing granting someone license to use your digital creation to granting someone the right to commit murder?  Really now?  Do you have any concept of what kind of an apples and oranges comparison that is?

 

ETA:  My first thoughts on this when I read it was that it could not be legal.  But the more I thought about it and read people's comments the more my opinion changed.  Of course, I am not a lawyer.  But applying my limited knowledge of copyright laws, yes, I do think this may very well be legal.

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It most likely is legal from the ToS start date, but like I posted in the other thread, putting a ToS that affects all past created content can`t be legal and if you don`t agree with it, you have had no warning to close up shop and in essence are being held hostage.

Sure, for new content you will have to make a choice to continue or switch grid to to be able to create new content while remaining here in a private environment and just support old content.

[Perrie Juran]

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Alicia Sautereau wrote:

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Perrie Juran wrote:

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Drake1 Nightfire wrote:

I've been saying since the start of this that the new ToS isn't leagal. Somehow that makes me a troll in some eyes..  Thanks for the support from both you and Darrius.

---

I don't think you are a Troll.

I just think you don't understand "content rights."

Do you understand the difference between exclusive and non-exclusive rights?  Do you understand the difference between a limited and an unlimited right?  With all due respect, so far I have not read anything in your posts that shows that you do.

Comparing granting someone license to use your digital creation to granting someone the right to commit murder?  Really now?  Do you have any concept of what kind of an apples and oranges comparison that is?

 

ETA:  My first thoughts on this when I read it was that it could not be legal.  But the more I thought about it and read people's comments the more my opinion changed.  Of course, I am not a lawyer.  But applying my limited knowledge of copyright laws, yes, I do think this may very well be legal.

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It most likely is legal from the ToS start date, but like I posted in the other thread, putting a ToS that affects all past created content can`t be legal and if you don`t agree with it, you have had no warning to close up shop and in essence are being held hostage.

Sure, for new content you will have to make a choice to continue or switch grid to to be able to create new content while remaining here in a private environment and just support old content.

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Thats my take on it also.  If the TOS read, "all content you have uploaded," past tense, I think that would be clearly illegal.  But nowhere can I think of any phrases in the TOS that are in the past tense.

 

ETA:  I have gotten really tired of re-reading the TOS so many times.  I really do need to get my Second Life back. 

[Alicia Sautereau]

/kills quote

That`s why I`m doubting that Chosen would be in trouble when accepting the new ToS, aslong as she won`t accept new contracted work, she should be fine to tie up lose ends or continue on a personal level as it does not affect her previous contracts and content created under it, only future work.

 

I can pretty much nitpick on everything to a point of annoyance =)

[Chic Aeon]

I just wrote on another thread about the "all" or "recent" issue. I was in the recent camp with you as that seems the logical and moral way to read the TOS. HOWEVER, lots of folks (some must have been on this thread) have contacted RL lawyers and all the ones I have heard from got the ALL answer.  Linden Lab is claiming everything from the beginning.

Now that doesn't mean they would WIN in court or that it is legal, but that is apparently what the TOS says. Didn't make me happy. Too many lawyers apparently in that camp though  (not all) to disregard the possibility.

Sorry not to make your day . 

I am still not uploading. Whatever reasoning behind the TOS it was a BIG slap in the face and has hurt many people that work in SL and RL in crossover roles -- let alone the rest of us.

[RiftRaven]

I'm in this camp too. It makes sense if you think about the risk they were willing to take. I've read the part of the TOS, relevant to it being retroactive and it does sound that way.

[Drongle McMahon]

There's another point I am confused about. It concerns the attribution requirement of the CC-BY license, often applied to third-party textures, whose only restriction is the requirement for attribution of the work to the originator. I believe attribution is a moral right. If the ToS is non-retrospective, then this question applies to uploading new CC-BY textures. If it is retrospective, then it could determine whether someone who has uploaded a CC-BY texture in the past can accept the ToS without making a false affirmation.

 

Accepting the ToS requires that "you waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content" * (note that that does seem to be any, not just new content).  However, the attribution requirement connected with the CC-BY license is not your moral right, it is the moral right of the licensor. You cannot waive someone else's right. So at first it seems you cannot upload (or cannot accept the ToS). However, you are only agreeing to waive your rights, and you have none. You have not agreed to waive any third party rights. So maybe there is no problem?

In section 2.7, you agree not to submit (upload) anything unless unless "you are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant Linden Lab and users of the Service all of the license rights granted in these Terms of Service." As far as I can see, there is nothing in the license rights granted in the ToS that says LL does not have to respect any third party moral right to attribution (as opposed to your own moral rights, excluded above). Neither can I see anything in the uses contemplated by the ToS that would be incompatible with CC-BY as long as the attribution requirement is met.

So, it seems that there is nothing requiring you to affirm the right to waive third party attribution rights, and that there is nothing claimed in the User Content license that would be prevented by the requirement for that attribution. In that case, uploading of CC-BY licensed textures appears to be compatible with the ToS. That would mean they can be uploaded after accepting the ToS, and that those that have uploaded them in the past can accept the ToS without making a false affirmation. It would also mean LL would then be required to respect the attribution (and other) moral rights of the third party originator when they put into effect any of the licensed uses unless they obtain a waiver.

Of course, this is all ignorant speculation on my part. I would be interested to know how others would interpret the effect of the ToS in this case. Is there something else in CC-BY I have missed?

*blue text = quoted from ToS © 2013 Linden Research; quotations claimed as fair use. My emphasis in bold.

[Czari Zenovka]

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Darrius Gothly wrote:

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Toysoldier Thor wrote:

It would be unfair to label Drake1 as a Troll.  His postings do not fit the definition.  He has a different educated perspective of this issue and his posts are providing content into the topic that can be considered for debate.

A Troll is one that posts with the pure intent to emotionally inflame others by using insulting content that presents "ZERO" value to the actual discussion.

This was the case in the TOS thread on the ART forum where some basically said...

"Good riddance. Second Life needs less junk makers."

to the artist/creator community.

 

I understand Drake's opinions... I dont agree with his approach on how the situation should be resolved.  His is more "passive / reactionary" and others are more "aggressive / proactive".

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Seconded!

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Thirded!

 

[Czari Zenovka]

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Chic Aeon wrote:

 

I am still not uploading. Whatever reasoning behind the TOS it was a BIG slap in the face and has hurt many people that work in SL and RL in crossover roles -- let alone the rest of us.

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*Pulls up a chair next to Chic and Rift in the "not uploading camp."  I'm a teeny fish in the huge ocean as a SL content creator, but I do have a voice (and a profile to place my protest within, and people with whom I can *share* the news). *

[Drake1 Nightfire]

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Czari Zenovka wrote:

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Chic Aeon wrote:

 

I am still not uploading. Whatever reasoning behind the TOS it was a BIG slap in the face and has hurt many people that work in SL and RL in crossover roles -- let alone the rest of us.

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*Pulls up a chair next to Chic and Rift in the "not uploading camp."  I'm a teeny fish in the huge ocean as a SL content creator, but I do have a voice (and a profile to place my protest within, and people with whom I can *share* the news).

*

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WHat i am going to be putting on the MP are outfits that i have already uploaded to my inventory. I have many many items made that i have not had the time to load to the MP. I was a very busy beaver at one point, perhaps as many as 250 different outfits. the mesh was uploaded long before the new ToS, so all LL could do is use the textures. Good luck with that, textures without a mesh are useless.

[Chic Aeon]

You might as well but don't count on your items being in jeopardy ONLY after the TOS mid August. The preponderance of RL attorneys that have been consulted on this seem to believe the TOS states that it is ALL content from the beginning, not just NEW content. No one will know until it is tested in court. From some comments on the board, that may not be too long off.

[Chic Aeon]

I thought we talked about this on the mesh board and agreed  (you and I ) that now we can only upload hand-made textures or ones made from photos we took ourselves.

I can't see how we can use Creative Commons (well  "I" won't be anyway so let's say "people" ) because:

"In connection with Content you upload, publish, or submit to any part of the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Linden Lab and users of Second Life to use the Content in the manner contemplated by the Service and these Terms of Service."

There is no way we can do that using CC attrib items  -- especially knowing that we ALSO give LL the right to reproduce, reverse engineer, sell etc WITHOUT ATTRIBUTION -- which is that "in the manner contemplated by the Service and these Terms of Service" part .

That's just my take on it. It certainly USED to be OK. I am still using CC on another grid and referencing in the description field, but I don't see how that can be done "legally" any longer here.

You know when I was in high school long ago we had a HUGE test on the constitution. We had to know ALL the articles and the numbers et al. This is a bit of deja vu here - LOL.

And to the folks that keep insisting that they just use textures from INWORLD sources -- a very large proportion of those are and were illegally uploaded to start with. So no halos guys. Make your own or cheat. That seems to be your choice. Passing the buck is merely passing the buck.

 

 

[Perrie Juran]

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Chic Aeon wrote:

I just wrote on another thread about the "all" or "recent" issue. I was in the recent camp with you as that seems the logical and moral way to read the TOS. HOWEVER, lots of folks (some must have been on this thread) have contacted RL lawyers and all the ones I have heard from got the ALL answer.  Linden Lab is claiming everything from the beginning.

Now that doesn't mean they would WIN in court or that it is legal, but that is apparently what the TOS says. Didn't make me happy. Too many lawyers apparently in that camp though  (not all) to disregard the possibility.

Sorry not to make your day

. 

I am still not uploading. Whatever reasoning behind the TOS it was a BIG slap in the face and has hurt many people that work in SL and RL in crossover roles -- let alone the rest of us.

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Generally speaking, when there is an ambiguity or a contradiction in a contract a Court will rule in favor of the 'weaker party,' which in this case would be us.  I could see where an Attorney might say that is a possible meaning.

Regarding Adhesion Contracts, I think Cornell University Law School is a pretty reliable source:

"Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability. Factoring into such decisions include the nature of the assent, the possibility of unfair surprise, lack of notice, unequal bargaining power, and substantive unfairness. Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement. "

If LL is claiming (new) rights to prior content, I do not believe a Court would allow it.  I also don't think LL's lawyers are THAT stupid. 

(On a side note to this, while people like to cite "Bragg," when you look at what happened, I dont think LL's actions in suspending his account were spurious or with no reason.)