Please Tell Me I Am Wrong - TOS Woes

[Toysoldier Thor]

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Gaia Clary wrote:

BTW i have also seen this page which contains a written statement from LL about why the TOS has been changed:

http://modemworld.wordpress.com/2013/09/11/tos-change-and-content-rights-lab-provides-statement/

Especially this part of their reasoning is interesting:

"As an example, Linden Lab’s 

Second Life Mainland Policies

 (cited as “Additional Terms” in the updated Terms of Service) have long included Linden Lab’s right to “re-sell or otherwise alter abandoned parcels of SL’s mainland,

”

including, if and to the extent necessary, any user-created content incorporated into such parcels.

"

Now the interesting point is that the text which i highlighted in dark red is not part of the policies document. I found this remarkable :matte-motes-sunglasses-3:

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Isn't that interesting...

an informal statement supposedly from a LL Authority (whch cannot be confirmed) posted onto an non LL Communication channel (i.e. a 3rd party unaffiliated blogging site) of which nothing in the posted statement carries any weight / validity at all, and the statement is quoting facts in LL Policies that might not even exist in these referenced policies?  Very interesting

Barring the fact that anything stated by this unofficial LL source on an unofficial LL communication channel has no value, even if we assumed that it was official and valid... unless these statements of intent were stated in the TOS... the TOS already states that these LL statements would hold no legal weight anyway - only the TOS is master and trumps all other statements except by a few stated exceptions.

So, this LL source could really say anything and promise anything as it hold ZERO weight... it was just a PR stunt in hopes to sloq down the growing revolt that LL has created among its Creator Communities.

[Drongle McMahon]

'Linden Lab’s right to “re-sell or otherwise alter abandoned parcels of SL’s mainland,” including, if and to the extent necessary, any user-created content incorporated into such parcels." '

Yes. That puzzled me too. How on earth could it ever be "necessary", since they can undoubtedly always remove all user content, including even terrain maps of islands? The only case I could think of was when they agree to transfer the land and contents of a user who has died, if the will so requested. Even then, that wouldn't be selling.

[Chic Aeon]

Doesn't show up for me at all . I wasn't making it up! LOL Glad to know it is there for someone.

[Toysoldier Thor]

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Drongle McMahon wrote:

'Linden Lab’s right to “re-sell or otherwise alter abandoned parcels of SL’s mainland,

”

including, if and to the extent necessary, any user-created content incorporated into such parcels.

" '

.

---

And even IF this clause was actually stated in the Land Policy that is an extension of the TOS, it could easily be understood that "...to the extent necessary" would clearly fall within all the previous main TOS versions defined INTENT limitations.  i.e. that they have the rights but only for the intent as described in the main TOS ... to operate and promote SecondLife.

So as far as I see it, this argument provided by this questionable authorized LL staffer on a non-LL communication channel does not really hold water as proof that we had given up our rights long time ago.

[Darrius Gothly]

I'll take it one step further.

---

Gaia Clary wrote:

BTW i have also seen this page which contains a written statement from LL about why the TOS has been changed:

http://modemworld.wordpress.com/2013/09/11/tos-change-and-content-rights-lab-provides-statement/

Especially this part of their reasoning is interesting:

"As an example, Linden Lab’s 

Second Life Mainland Policies

 (cited as “Additional Terms” in the updated Terms of Service) have long included Linden Lab’s right to “re-sell or otherwise alter abandoned

parcels

of SL’s mainland, “including, if and to the extent necessary, any user-created content incorporated into such parcels.”

---

 This relates only to abandoned PARCELS. Since Land begins life as Linden Lab property, is only rented or leased by users and has never existed in any real form on the user's computer, this whole citation is a total Dunsel. It's their stuff to begin with; what do we care what rights they have over their own stuff?!?

If there is any content left on that Parcel, they had never previously had the right to take ownership of it for the purposes of resale. They could return it or delete it as necessary in order to salvage the Parcel, but they were never allowed to claim distribution, resale or modification rights over it.. That would have violated the limited rights specified in the prior section 7.? that limited their rights to those required to run the service. Add to that the fact that it is never necessary to resell content in order to clear it from a Parcel. FHS! They have God Mode that allows them to make stuff evaporate permanently. Why on (virtual) Earth woul they need to SELL it to make it go away?

All in all, this statement is not only worthless as the ToS is the only governing document (as stated BY the ToS) but it cites examples that are not even accurate or applicable.

[Toysoldier Thor]

LOL Darrius,

If this is an example of the LL Legal / Corp staff that LL plans to send in front of the courts to defend their TOS Claims against their SecondLife creators & customers, I have a feeling there will be a lot of "settled out of court" conclusions to hide from the public how easy it is for the creators / artists of SL to walk thru this TOS.

I can't wait for LL's next rare earth public statement / explanation / defence on the TOS topic - wherever it shows up on the Internet.

[Darrius Gothly]

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Toysoldier Thor wrote:

LOL Darrius

,

If this i

s an example of the LL Legal / Corp staff that LL plans to send in front of the cour

ts to defend their TOS Cl

aims against

their

S

econd

Life

creators & customers, I have a feeling there will be a lot of "settled out of court" conclusions

to hide

from the public how easy it is for the creators / artists of SL t

o walk thru th

is TOS.

I can't wait for

LL's next rare earth public statement / explanation / defence on the TOS topic - wherever it shows up on the Internet.

---

The scary part for me is that they put this statement out in the public expecting that we'd all be like "Oh, well gawrsh. I see it now. Whew! Shame on me for getting all worried and stuff. Tsk tsk tsk on me." As if they expect us to be so naive as to not be able to read, not be able to comprehend .. and not have access to legal counsel with a good grasp of the issues involved. Do they REALLY think we are that naive and gullible?

If so, that goes a long way toward explaining why they are bending us over and administering the coup de wedgie without so much as a "would you like fries with that?"

[Chosen Few]

Toy, before I respond to your specific points, let me take a moment to remind everyone that we're all on the same side.

I don't like the new TOS, you don't like the new TOS, I don't even think most of LL likes the new TOS.  But as long as we're stuck with it, we can't ignore its legal realities.  It would be great if what it says were not what it means, but wishful thinking doesn't make it so.  Whether or not it says what any of us wish it to mean, leagally it means what it says (until and unless a court orders otherwise).

Those who agreed to the new TOS have unfortunately given up a great deal.  Those who can't agree to it are just as unfortantely giving up a lot, as well.  Sooner or later, I'm sure LL's going to feel the pain of it, too.  In "streamlining" their business, as they allegedly have called it, they've turned their backs on their core principles. Very few businesses ever fully recover from the inevitable long-term fallout when they do a thing like that.  This is a lose-lose-lose situatiion, for all concerned. 

Morally, I completely agree with you that changing the terms like this wthout any warning was unconscienable.  But legally, it's a different story.  No laws were broken, no binding contracts breached.  Legally, LL had the right to make these changes, and to block access by anyone who refused to accept them.  The fact that you or I or anyone else has opted to depend on SL for income does not change that, sad as it may be.

I wish I could offer a more positive assessment, but until LL sees fit to relinquish the new rights they've claimed, I simply can't.

 

 

Let me respond to what I think are your main points, and your direct questions:

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Toysoldier Thor wrote:

What if members of the non-negotiating party (i.e. all us creators of SL) fundamentally disagreed with the new terms but were forced to agree to the terms because by not agreeing to the terms they would be placed into a position that is financially damaging, illegal on their part, contractually violating with their other parties for delivering services, and even personally damaging?

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That's a really good point, which we should absolutely talk about.  Thanks for bringing it up.

Here's how I'd handle any outstanding contracts for SL content, if I had any right now.  I'd simply inform my clients that I need them to give me access to an avatar that they own, which I would then use for uploading/building for their projects.  (Some clients insist on this, anyway, so it shouldn't be a big deal.)   That way, I could fulfill my obligations without having to agree to the new TOS myself.   In some cases, that might mean I'd need to redo some work, but that's hardly as bad as the alternative.

The catch is I'd need to be sure not include any stock content, be it my own or anyone else's.  Everything would need to be 100% original for the specific project at hand.  That might mean changing some delivery dates, but my contracts give me the right to do that under extraordinary circumstances, and this certainly qualifies.

 

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Toysoldier Thor wrote:

The position you are taking is purely a BLACK AND WHITE situation based on your own current working relationship with LL and the SecondLife grid. 

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I can assure you my legal interpretation here is not based on whatever relationship I do or do not have with LL.  It's based on the letter of the new TOS, as it is written, and my understanding of the laws I've been doing business under for the past 20 years. 

As I've said repeatedly, I'd love to be wrong in my interpretation, but my experience tells me I'm not.  Once again, I'll certainly be bringing this up with my attorney, next time I see him, and I will report back what he has to say.  I'd love for his opinion to differ from mine, but again, I'd be surprised if it did.

 

 

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Toysoldier Thor wrote:

So I ask you to step back and consider the situation / relationship of countless other creators inside SecondLife.  Those that over the years, established a significant part of their critical RL income based on what they have created over the years.  those that built this business/income under years of an acceptable set of TOS rules whereby LL has showed presidence that it was "the way it was and will be" as a working relationship between LL the Service and these Creators.

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I promise I'm not blind to the fact that SL has provided great income opportunities for a lot of people, myself included, and that some people have come to depend upon that income.  You can ask me to step back and consider whatever you like in that regard, but I'm not sure what good you expect it'll do.  I'm not the one who decides these things.  The law is the law, and the courts are the courts.  While my heart goes out to those who may end up losing their SL businesses over this (again, myself included), my personal feelings cannot change the legal reality.

Perhaps I have not made it clear enough yet that I'm one of the very people you're talking about.  A critical part of my income HAS come from SL, for many years now.  In fact, SL content creation was my sole occupation for several years, back in the mid 2000's, when demand was at its peak.  These days, while SL is not the only platform for which I make content, it's still a far from insignificant.  I'm definitely going to feel the impact of not being able to work in SL any longer, if the new TOS stays.

So, my reasons for being upset about the new TOS do not stop at mere principle.  Believe me, it puts a significant dent in my bottom line.

 

 

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Toysoldier Thor wrote:

Let me put you into one of their shoes for a moment....

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No need.  I actually know quite a few people who fit the description you provided.  My heart goes out to each and every one of them.  They're perhaps the ones who are feeling this the most.

However, it still can't be said that LL has put any sort of gun to their heads.  The fact that LL had provided some great opportunities for the disabled through SL does not mean they have any legal obligation to continue to do so.  Again, they're a private company, and they can close their doors any time they like, no matter how the rest of us feel about it.

 

 

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Toysoldier Thor wrote:

Do you as a person in this sitation have a reasonable option to NOT ACCEPT?  Not accepting on that day means that you instantly can no longer collect the income coming from your business - the income that feeds you and your family.  You instantly cannot operator nor even smoothly shut down your business operation within SL since you have no access to SL without Agreeing to the TOS.  You have customers that you may have agreements to support whereby you no longer can and there might be contract violations on your part if you do not meet them.

Sorry Chosen, in my non-legal opinion this would seem to me to be a contract agreed to under duress. 

---

Yes, absolutely I'd have a reasonable option not to accept.  When one has opted to go into a business that depends upon IP rights protections, one can NEVER accept any agreement that requires the granting of unlimited rights to third parties. 

Does that mean LL's actions weren't unfair?  Of course not.  Does it mean it's not going to be awful for those who may lose their livelihoods as a result?  No, it's going to be awful.  Am I absolutely furious with LL for doing this to all of us?  Absolutely.  But again, none of that changes the legal reality on the ground.

If you want to call it "duress", feel free, but recognize that it's pretty easy to argue it's self-imposed duress.  Nobody forced anyone to start an SL business, or to ignore the inherent risks that go with depending on any one platform for all their income.  And certainly LL never made any guarantee that any SL business would remain viable forever. 

 

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Toysoldier Thor wrote:

If you as a creator were to take LL to court under these conditions... are you saying the courts would not see this as new terms that are "

not reasonable

" and therefore the courts would deeem parts of the TOS unenforceable because its an

unconscionable contract

?

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Anything is possible, but as much as it pains me to say it, here's what I think would most likely happen.  If someone were to go before a judge and say, "I was forced to agree becuase all my income comes from my Second Life business," the judge would reply, "So what you're saying is this.  You knew that the service Linden Lab was proividing could  be switched off or changed at any time.  You knew that they could choose to deny you access to their service whenever they want.  You knew they could change their terms at the drop of a hat.  Yet you still chose to make your income completely dependent on their service anyway?  I'm sorry, but the law doesn't protect you from your own bad business decisions."

Had LL ever made any specific promises to us, it would be a different story, of course.  I'd love to think it could be argued they did.  I'm just not sure it really could.  Each TOS has made it clear that the TOS can change at any time.

 

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Toysoldier Thor wrote:

Yes, I would love to know what your Lawyer thinks of that.  But remember this is important... when asking him, make sure you bring up the relationship that others have with LL... not yours.  Maybe you can easily walk away from your SL business... but countless others cannot.  What would your Lawyer and the Courts think of that?

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I'll definitely post as soon as I've had the conversation with him. 

 

In the mean time, let me say this.  You may recall there have been lots of times throughout the long history of this forum that I've tried to encourage people to develop universally applicable skills as digital artists, rather than just SL-specific skills.  This type of situation is one of the biggest reasons I've tried to do that.  While I did not specifically foresee that LL would go off the rails on IP rights claims, I've always known that SOMETHING could go haywire one day.  I've tried to encourage people to keep in mind that LL is a private company, who has no real obligations to our own businesses.  They could close their doors at any time, for any reason, or for no reason.  Thus anyone who's insisted on putting his or her eggs just in this one basket all these years has benn taking a tremendous risk.

Every RL business owner goes through this kind of thing.  Think about how many have to move or close every time a RL zoning law is changed, or how many have to reinvent themselves when some service they've depended on no longer exists, or how many have to try to find a new path when some new doohickey comes out to make their products obsolete.  It happens literally all the time.  In the time I've taken to write this post, probably at least a thousand businesses around the world have suffered exactly what I'm describing.

The simple fact is if someone's business is not pliable enough to evolve as conditions change, it's not a viable business, and it will eventually fail, no matter how well it might be doing today.  Therefore, it is every business owner's responsibility to be aware of that, and plan for it.

Owning a business is hard, which is why most people don't do it.  If SL for a few years gave some the false impression that it is easy, that was unfortunate.  Among the simplest truths of the world is that most buisnesses go out of business.  Sometimes the catalyst lies in circumstances the owner could have controlled, and sometimes it doesn't.  But every time, the outcome directly depends on the owner's ability to adapt to change.  Those that adapt well have a good shot at long term success, while those that depend on status quo invariably perish.  No matter how we each feel about that, the fact remains.

When a business dies, we can mourn its passing, and we can empathize with the plight of the owner and his or her family.  But none of that means the change that killed the business was necessarily illegal, no matter how unfair it might have been.

It's no different in SL.  LL changed the "zoning laws", and some of us were zoned out.  If it changes back, we can return.  If not, we have to move elsewhere.

[Chosen Few]

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Alicia Sautereau wrote:

Thankfully you can write alot better then I can, but this is exactly the point I was also trying to point out that applying it to all content can`t be legal but could be applied to all new content after the ToS came in effect

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Just because we disagree with something, and we feel it's unfair, doesn't mean it's illegale. 

Was it fair of LL to snatch up all that existing content?  No. 

Was it legal?  Yes, if you agreed to it.

[Darrius Gothly]

Very well worded post Chosen. We do see eye-to-eye on a lot of points. In my case, I was treated to the destruction of my primary income from SL in late 2011 and early 2012, so I'm all too familiar with having the "Zoning Laws" changed underneath my feet.

Furthermore I am very much a community-minded type of person, and as such I find it wholly unconscionable that Linden Lab would so easily make the changes they have, turn a seemingly deaf ear to the repercussions, and so far seem completely willing to sacrifice such a crucial asset as Customer Trust for the sake of "expediency".

Hopefully we will wake up some day soon and find yet another new ToS that remedies all the issues caused by the most recent change, but I promise this .. I'm not holding my breath waiting.

[Toysoldier Thor]

@Chosen,

Don't get me wrong with regard to my responses to your posts... I know you are clearly not in favour of the new TOS as is the case with the vast majority from all that has been read/posted all over the community.  I was just debating your understanding / interpretation of how the courts would potentially look at and rule.

I can't argue any of your points as you could be right that the Judge that reviews the case and makes a ruling could very easily side in favour of the Authoring party of the contract because he/she has a "business is business - too bad so sad" belief. 

But as I am sure you know... the ruling is highly influenced based on the Judge's personal beliefs as well.  He/she could just as easy see this case as LL is the unfair draconian overlord that has major an unreasonable shift from its years and years of presidence setting norms of NOT shifting its rights. 

He/she could also see in the case that the Creators / businesses that has established and built an income exclusively within the SL grid had strong evidence to suggest that although LL's TOS terms clear state they could change without notice at any time on the matter of IP Access Rights, there was strong evidence / trending / presidence to show that LL has not executed on this potential which gave the creator community a false sense of security that LL would never do this in the future.  Almost like a Squatters Rights by the Creators.

As such, this sympathetic Judge could see that LL was being draconian and causing an unexpected, harsh, and unfair shift in its TOS that could normally not have been expected by the non-negotiating party and as such causing clear hardship towards its customer base.

But again... you are more experienced than I.  I guess time will tell. 

The new UCCSL group (with over 200 members and growing) is in the process of sending out letters to the FTC as well as to the similar departments of other countries to ask their thoughts / opinions on the latest LL's latest TOS wording and process.  Maybe responses from these organizations will confirm your point that as draconian as LL has been with this TOS - they are in the legal right.   Or..... maybe not.

I would have to think that since LL is standing this strong and silent on their latest TOS even with all the fallout happening all around them, their legal staff must feel confident that their latest TOS will stand healthy and strong when reviewed by organizations like the FTC and others - otherwise we would have seen Rodvikk back down on this TOS.

So maybe you are right.

[Perrie Juran]

A Judge can be only friendly to a point.  While they may agree that LL was being a big bad wolf, they still have to (are supposed to) follow the letter of the law.  They need to have some type of legal premise for their ruling.

I can see two points a Judge might have problems with.  Lack of notice is one.  You were not afforded the opportunity to remove your content per the terms of the old TOS before the new TOS went into affect.  It would be similar to changes my Bank makes to their terms.  They give me 30 days notice with the statement, "if after the effective date you continue to Bank with us, by continuing to do business with us you agree to the terms."  Though in my opinion actually because you were operating under the old terms, the 30 day notice was there, just not reiterated in the new.

The second thing is refusal to allow you access to your Linden Dollar balance (in order to cash out) unless you agree to the new terms.  Just because they refer to them as 'game tokens' does not change the fact that they have value.

But these are very specific issues where the take it or leave it stance by LL without an 'opt out' clause could be a problem.

[Drongle McMahon]

"I'd simply inform my clients that I need them to give me access to an avatar that they own, which I would then use for uploading/building for their projects.  (Some clients insist on this, anyway, so it shouldn't be a big deal.)   That way, I could fulfill my obligations without having to agree to the new TOS myself." {Chosen Few}

Slightly puzzled as to how that works ...

1. You are making the work for hire, so the client gets the IP. Using their Alt, you are acting as the agent of the client, so that the client is the "you" of the ToS, as far as both the affirmation of right to grant license and the identity of the uploader is concerned. LL gets the broad license because the uploading account accepted the ToS. Thhis is consistent with RL because the client does have the right to grant the license (it's their IP) and they accepted the ToS using the Alt account.

2. You are making the work for hire, so the client gets the IP. Using thier Alt, it is you, not they, who upload the content. While you (RL person) have not accepted the ToS, the act of uploading does not give LL the new rights, neither have you affirmed that you could grant them. The Client still has all the IP. They did accept the ToS, but they didn't upload the content. From your uploading, LL gets only the rights from the old ToS. The Client didn't upload. Therefore LL gets cno further rights (unless they count as the publisher*, having hired you?)

*From ToS: ' "User Content" means any Content that a user of the Service has uploaded, published, or submitted to or through the Servers, Websites or other areas of the Service.'

 Is it one of these, or something different? It all comes down to the interpretation of "you" in the ToS. I assumed (at first; now I an just confused) it meant the RL person using the account when it was accepted. Or does it mean the RL person who owns the account; or either of those only when that RL person is using the active account when the ToS is accepted; or anyone using the active account; or anyone ever using the account?

I don't see anything in the ToS explaining who "you" is. If my assumotion was right, that it was the RL person using the account when it was used to accept the account (thus applying also to any Alts), then there is still nothing to say whether it should apply by proxy to any other RL person using that account.

Maybe your lawyer will feel kind enough to elighten us on that issue too?

I did re-read the ToS looking for anything that was against the use of Alts by other people (to act as the main's agent, or whatever), and I saw is nothing against it.Only perhaps that, by giving you access, the owner of the Alt may accept responsibilty for your actions while using it.

 

[Chic Aeon]

Thank you Chosen for a very well written post. I am happy that my thread, typed in techie naïveté, turned into something important.

From the beginning I did realize that while The Lab was definitely sneaky, those of us that clicked through without reading carefully, were indeed in peril (well our stuff anyway). I am still here. I am still working at my jobs, but my heart and enthusiasm are now on another grid. I am in many ways going through the motions -- not willing to give up quite yet. We will see how long it takes me.

There are a few things rumbling around in my head still. The conversation has been long with most things that could be said already said -- that is definitely true. But, I was listening to a video panel discussion on this ( I sent the info to the UCCSL so it should be on the Google page) and someone made the statement that as bad as things are for Linden Lab with all of this uproar and since they are not fixing something that would be fairly simple to do -- there must be a very compelling reason for them NOT to do so.

We don't know if there was a larger impetus behind this move than just the incorporation of all the services under one umbrella. Still the longer the quietness goes on, the more it seems there is something really BIG in the works. I keep thinking of that line in the "press release" about Linden Lab wanting to make even more opportunities for folks.  I am wondering how many of them will even CARE should there be a silver lining in all this.

We are coming up on the two month mark of the new TOS. Someone mentioned something in a long ago far away thread about 60 days and legalities with contracts and such. It will be interesting to see if in fact, they have been waiting for that time period to elapse before revealing their motives. And maybe there simply aren't any motives.

I agree with Chose that LL has given us much; we knew the risks; we CAN move on with the skills we have learned here. There certainly could have been nicer and more poignant endings though :matte-motes-don't-cry:

AND

I do think Pierre has some really good points about "notice" and  the inability to retrieve your Linden Dollar balance.  Good thinking Pierre!

 

 

[Chosen Few]

Sorry to hear you lost your business, Darrius.  I do hope you were able to find something else that works for you.

I too hope that LL will reverse course on the TOS, but like you, I'm not holding my breath. If history tells us anything, it's that LL isn't exactly fast on its feet.  I picture board meetings at LL to be kind of like entmoots.  "It takes a long time to say anything in Old Lindish, and we don't say anyhting unless it's worth taking a long time to say."

You're right about the loss of customer trust in all this.  Even if they do make the necessary changes tomorrow, a lot of damage has been done that can't be undione, in that regard.  It saddens me that I'll never be able to look at LL the same way after this.

[Chosen Few]

All I can really say from here, Toy, is that I sincerely hope you're right, and I'm wrong.

I'll be interested to see what success the UCCSL has in the efforts you mentioned.  Contacting the FTC is a good place to start.

[Chosen Few]

Pierre, you raise some good points.  I'm not sure how much weight they'd carry with a court, but they're certainly worth arguing.

The devil's advocate in me has to admit that the counter arguments are all too easy to make, though.  Regarding notice, LL had no legal obligation to give any.  And as for Linden Dollars, the TOS has always stated that LL is not responsible for any losses you may suffer as a result of purchasing them.  So, whilre it obviously wasn't ethical of LL not to give notice or allow us to cash out, it also wasn't illegal.

We're all in a tough spot.

[Chosen Few]

Drongle, in the scenario  I was referring to, the client would create the avatar, and accept the TOS themselves.  Then they would simply give me the login info.  So the "you" would physically be the client, the whole way through to that point.  From there, I'd simply be acting as the client's agent, per my contract with them.  The only content uploaded via that account would be that which belongs to the client.

 

You do raise an interesting quesiton, though, regarding alts.  Here's my take on it.  LL requires that you re-agree to the TOS with each alt that you have, before they'll allow you to log in with each one.  Therefore, they must consider each account to be an independent "person".  I suspect, though, that if any of us were to make an IP rights challenge on that basis, they'd claim that the per-account agreement requirement is merely a technical limitation, not meant to imply a legal separation between your stuff and your alt's stuff.