Please Tell Me I Am Wrong - TOS Woes

[Chosen Few]

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Alicia Sautereau wrote:

I`m going to call you on a part of it

You can login and do everything you want within the personal part of SL, including cashing out money.

It was said that the new ToS would be from that moment and not on items/assets from befor that date, so you can login with no problem but be restricted of not taking on new jobs.

Unless I`m wrong...

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I wish it were that simple, Alicia.  Believe me, I had certainly considered taking that stance, myself.  However, by the strictest letter of both the old TOS and the new, there's just nothing there to support it.  The old TOS said LL has the right to change its terms and conditions at any time, and so does the new.  Neither says any such changes won't be retroactive.

While it's possible a court might see it your way, there's no guarantee of that, and in the mean time, the damage would already have been done.

[Chosen Few]

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Darrius Gothly wrote:

One interpretation says that after you accept the new ToS, anything you've ever uploaded is now covered by the new terms. Another interpretation says that only the new stuff is covered.

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We could go on all day coming up with our own personal interpretations yes.  That's part of my point.

The reality is LL is going to act in accordance with their own interpretation of the terms they've spelled out.  It's an awfully big risk to assume they don't intend to apply the new TOS to older items, just because you think that that would be more fair.  I've seen absolutely nothing in writing from them that says they won't, not even from their PR people. 

Until and unless a court says otherwise, they have the right to apply it to eveyrthing.

[Chosen Few]

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Alicia Sautereau wrote:

T

hat can`t be legal, can it?

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If you're asking if it's legal for them to apply the new terms to old items, the answer is yes.  The new TOS says nothing about going forward from any specific date.  It merely says you grant LL unlimited rights to "your User Content".   That would certainly seem to include content you uploaded previously.

It's legal because nobody is forcing any of us to use SL.  By choosing to use it, we also choose to agree to the terms LL has spelled out.  The things we might wish the TOS would say are not the same thing as what it actually says.

Until and unless a court finds any part of the TOS invalid, it stands.

 

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Alicia Sautereau wrote:

Simple reasoning: they own the IP rights to Chosen`s work as he is just the contractor so in essence, it`s their work in their inventory even if it`s not created by them.

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Under the law, in a work for hire situation, the client is the creator, not the contractor.  I such cases, even though I physically did the work, I'm technically not the creator.  Legally, it was the client who conceived the artwork and I merely executed it.

I could potentially make that case in court, of course, and I probably could get LL not to claim rights to anything my clients haven't agreed they can take.  But needless to say, that would be extremely time consuming and cost prohibitive.  By claiming these new rights to all our stuff, LL has put a tremendous burden on me, and anyone else who does work for hire. 

We simply shouldn't be in this position where we have to jump through complicated legal hoops to make LL aware of who's got rights to what, just so they can know what stuff they can't yet take. When they weren't taking any of it, none of these problems existed.

[Toysoldier Thor]

All the responses I have read so far regarding if the new IP Hi-Jacking TOS pertains to any content uploaded prior to Aug 16th, the answers have been NO.  This topic was talked about in the largest of the TOS forum theads in the Merchant Forum.

There is no wording in the TOS that anyone has pointed out that they are laying claims retroactively to content uploaded to the grid while previous TOS versions were in effect.  And this is likely on purpose since LL Legal would know this would provide a clear opening where the TOS is unenforceable because it was an unconscionable contract of adheasion?  You cant lay arbitrary additional rights claims retroactively to content that was uploaded under previously agreed to conditions.

So... from all I have read on all these blogs and forum on the TOS, the only content that falls under LL's new IP rights hi-jacking is content uploaded after aug 16 (or whenever you logged in the 1st time after this date).

and to cover my butt... all this posted is my open personal opinion with no legal experience.

[Chosen Few]

Thanks, Toy, but unless we get some form of a binding agreement from LL, I don't thnk we can't rely on things like forum responses.  The TOS says "your User Content" period.  It does not say "whatever portions of your User Content were uploaded after August 16th."

I'd love it if I were wrong, but I'm not convinced claims on older content would be unenforcible.  Contracts of adhesion are generally those in which the weaker party has no choice but to comply.  But we do have a choice.  As I said in my earlier post, none of us here are forced to use SL.  We choose to use it, and we're free to choose not to use it if we don't like LL's terms.

While you're absolutely right that the company couldn't arbtarily claim additional rights retroactively, they did not do it arbitrarily.  They drafted a new set of terms, and asked us all to agree to them.  Those of us who refuse to agree are free to stop doing business with LL.

Again, I'd love to be wrong about this.

 

[Chic Aeon]

I am not sure how Toysoldier missed them but there have been MANY comments on the forum threads from content creators who have contacted lawyers in real life  -- and of those the vast majority of lawyers (paid  advice mind you) concluded that the TOS is at least MEANT to include ALL content.

I was with Toysoldier in the logic of it being only items after the date. Of course we won't know until it is tested in court, but the preponderance of attorneys in the "everything from 2003" camp seems to be large. Now I am not so sure. They won't get any MORE work from me; that's all I know.

I did work for hire (multi-media web) for many years so understand your dilemma.

And while I have seemingly made my home away from home in a new and very HIGH TECH world *wink*, I had heard from very close to the source folks that there will soon  be a variety of new worlds to populate should that become a necessity.

SL will likely always have "new folks". My business is very good and I sell items gear to people making homes so that leads me to believe there are new citizens coming in and doing more than "making love" .  Still, the loss of content creators seems like some pretty important collateral damage. The Lab has stated that they want to keep the 'cream of the crop' in design and unless there are behind closed doors deals going on, I don't see how that can work. AND they want to attract the best designers of 3D (I am taking that as mesh), but in the current climate I can't see how anyone would hit that sign up button.

So we will see. Meanwhile, look me up some time at that other world we are not allowed to mention here. I am there a good portion of the time these days, happily creating for creations sake with infinite space and free uploads. LOL.

Honestly, this may turn out to be a GOOD thing -- at least for me.

Take care!

[Toysoldier Thor]

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Chosen Few wrote:

Thanks, Toy, but unless we get some form of a binding agreement from LL, I don't thnk we can't rely on things like forum responses.  The TOS says "your User Content" period.  It does not say "whatever portions of your User Content were uploaded after August 16th."

 

I'd love it if I were wrong, but I'm not convinced claims on older content would be unenforcible.  Contracts of adhesion are generally those in which the weaker party has no choice but to comply.  But we do have a choice.  As I said in my earlier post, none of us here are forced to use SL.  We choose to use it, and we're free to choose not to use it if we don't like LL's terms.

While you're absolutely right that the company couldn't

arbtarily

claim additional rights retroactively, they did not do it arbitrarily.  They drafted a new set of terms, and asked us all to agree to them.  Those of us who refuse to agree are free to stop doing business with LL.

Again, I'd love to be wrong about this.

 

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ohhh but Chosen... they did do it arbitrarily as we didnt ask for them to have these additional rights given to LL.  And... IF (which I disagree with your position) they did claim these additional rights retroactively... then they did force us to accept the new terms. 

Let me ask you.... if you wanted to 100% disagree with the new terms how would you have disagreed?  By not logging into SL any longer?  Hmmmmm...  so lets think this thru... so you have decided NOT to accept the new TOS and you do not log into SL any longer.  First of all this is a form of blackmail since LL wont let you accept your large investment in SL and your content that you had full access to until Aug 16.  The only way you could is if you logged in.  To log in you HAD TO agree to the TOS.  If you did this simply to access your content... you were just forced to agree to the terms under duress.

IF you never logged into SL ever again in order to avoid agreeing... all the content is still in the SL grid for LL to use - including all the residents.  You are no longer a customer of SL since you refused to agree to the TOS.  How do you now go and tell LL .... I want ALL INSTANCES OF MY CONTENT REMOVED FROM YOUR GRID?

Sorry... I believe what many others believe... retroactive content rights would be a BIG NO NO in the courts for LL. 

But I guess we wont know until its challenged.  Just guess on yours and my part.

[Coby Foden]

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Kwakkelde Kwak wrote:

From Renderosity:

"Second Life is owned and operated by Linden Labs...."

Coby?

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Ok, I sent them email notifying them about their error in the company name.  :matte-motes-big-grin: :smileywink:

[Kwakkelde Kwak]

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Coby Foden wrote:

Ok, I sent them email notifying them about their error in the company name.  :matte-motes-big-grin: :smileywink:

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I'm sorry to force your hand like that and hope you don't mind. I just couldn't help myself

[Chosen Few]

Toy, while I'm obviously not happy to have to disagree on this, I can't deny the facts as I see them.  The premise of your arguement seems to be that LL somehow forced our hands when they asked us to consent to the new TOS, simply because they can bar us from using their service if we don't agree.  What you don't seem to want to recognize is the fact that SL is not something any of NEEDS to log into.

SL is an entirely optional service.  Thus no one can be forced into anything, with regard to it.  This is true regardless of whether or not we've opted to put money into it, or to make money from it.  

When LL asked for rights to all your stuff, and you said yes, YOU made the decision to do that.  Nobody forced you.  You were free to say no, and simply walk away.

It's not like a situation where a landlord  is able to strongarm a tenant into signing an unreasonable lease, because the tenant cannot afford to move out, or where a credit card company jacks up interest rates, after a customer already owes a debt he or she cannot possibly get out from under.  In those scenarios, the weaker party is truly powerless, because it does not have the option to walk away.  But when it comes to the agreement that LL has with us as its customers, any of us can walk away at any time.  Both parties have equal strength.  None of us can be forced to remain SL users, under any circumstances.

Let me respond directly to each of your points.

 

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Toysoldier Thor wrote:

ohhh but Chosen... they did do it arbitrarily as we didnt ask for them to have these additional rights given to LL.  And... IF (which I disagree with your position) they did claim these additional rights retroactively... then they did force us to accept the new terms.

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We did not ask for it, no.  But if you agreed to it, that was all you.  Nobody forced you.

 

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Toysoldier Thor wrote:

Let me ask you.... if you wanted to 100% disagree with the new terms how would you have disagreed?  By not logging into SL any longer?  

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Yes, exactly.  That's why I have not logged in since before the TOS was changed, as I have stated.

I hate that I have to stay out, but I simply can't log in under these circumstances.

 

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Toysoldier Thor wrote:

Hmmmmm...  so lets think this thru... so you have decided NOT to accept the new TOS and you do not log into SL any longer.  First of all this is a form of blackmail since LL wont let you accept your large investment in SL and your content that you had full access to until Aug 16. 

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It's not blackmail.  I've known since day one that LL owns all the data on its servers, and that they've always had the right to block my access to that data at any time, for any reason.  Every version of the TOS has stated this very clearly.

That said, this has always been a common point of misunderstanding, among a lot of SL users.  While everybody understands that we each own the IP with respect to our creations, a lot of people don't seem to understand that it is LL owns all the data in SL.  Data and IP are two different things.

None of us has any right to access LL's data without their say so.  If we don't like the conditions under which they will grant us access, then we're free to walk away.  We can dislike that fact all we want, but dislike doesn't change the legal reality.  It's their servers, their data, their gate to open or close as they see fit.

 

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Toysoldier Thor wrote:

The only way you could is if you logged in.  To log in you HAD TO agree to the TOS.  If you did this simply to access your content... you were just forced to agree to the terms under duress.

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No one is being forced under duress.  If someone held a gun to your head, and demanded you click the Agree button, that would be duress. But simply denying you access to data that you never owned in the first place does not fall into the same category in any way.

 

You make it sound as if you believe you have a fundamental right to access content you've opted to store on LL's servers.  That's simply not the case.  All the data on LL's servers belongs to LL, and they're under no obligation whatsoever to allow you continued access to it.

The new TOS states, "You should ensure that you have only stored Content on the Servers to which you are willing to permanently lose access."  Every version of the TOS has contained language to that effect.

 

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Toysoldier Thor wrote:

IF you never logged into SL ever again in order to avoid agreeing... all the content is still in the SL grid for LL to use - including all the residents.  

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If I never agree to the new TOS, then all my content remains licensed under the terms of the old TOS.  LL can use it for the purpose of running and advertising SL, and that's it.

 

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Toysoldier Thor wrote:

You are no longer a customer of SL since you refused to agree to the TOS.  How do you now go and tell LL .... I want ALL INSTANCES OF MY CONTENT REMOVED FROM YOUR GRID?

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Per the old TOS and the new, you do not have the right to demand that all instances be removed.  That was never in the cards.  LL has always had the right to store its data indefinitely.  

Under the old TOS, LL could continue using your content in limited ways, after you're gone.  This included things like debugging, testing, development, etc., as well as allowing other users to whom you've given or sold copies to keep using those copies.

If I ultimately choose to leave, I'm fine with LL retaining those limited rights.  That's perfectly reasonable, and I knew that it would be the case, from day one.

 

Under the new TOS, they can do literally whatever they want with all your content, including selling it or giving it to others who can then also do whatever they want, forever, whether you've left or not.  That's unreasonable, and completely unacceptable.

If you agreed to the new TOS, that's the boat you're now in.  If you did not understand that when you agreed, that's unfortunate.  But you still agreed.

 

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Toysoldier Thor wrote:

Sorry... I believe what many others believe... retroactive content rights would be a BIG NO NO in the courts for LL. 

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Don't be sorry for wanting to believe that.  If you were correct, that would be wonderful.  

I'm the one who's sorry, because I'm all but certain you're not correct.  I've been dealing with IP contracts professionally for a couple of decades now.  I write them all the time.  I know that were it LL's intent only to apply the new terms to new content, they easily could have included language to state that.  But they didn't.  The new TOS very clearly says that it applies to "your User Content", and leaves it at that.  In that context, there's no distinguishing between content you uploaded 10 years ago, and content you upload today. 

As I said before, I'd love it if I were wrong.  But I'm sure I'm not.

 

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Toysoldier Thor wrote:

But I guess we wont know until its challenged.  Just guess on yours and my part.

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Yes, until a court weighs in on it, nothing is 100% certain.  I wouldn't go so far as to call my opinion merely a guess, though.  While it's not an absolute certainty, it's far more than just a guess.

As I said, I've been doing this for a long time.  While I'm not an attorney, I do speak legalese quite fluently, and I deal with IP law and contract law on a daily basis.   

I will of course get my attorney's take on this, when I next speak with him.  As much as I'd love it if he were to say, "You've been overly cautious.  You can relax.  Log into SL all you want, because your prior content is likely exempt,"  the reality is I'm 99% sure he's not going to say that.   His opinion will most likely be in line with mine.  I learned a good portion of what I know from him, after all.

 

All of the above said, I'll repeat once again that I'd truly love to be wrong about all of this.  The agument that we had a reasonable expectation that LL would never seek to claim these new rights can certainly be made.  If it were made in court, it might be enough to get the new TOS invalidated, at least for prior content.  But until and unless that happens, I can only go by what the TOS actually says.  As written, it makes no distinction between old content and new.

[Chosen Few]

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Chic Aeon wrote:

Meanwhile, look me up some time at that other world we are not allowed to mention here. I am there a good portion of the time these days, happily creating for creations sake with infinite space and free uploads. LOL.

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Are we really not allowed to mention it?  When I search the forum for it, I notice I can't find the thread you recently created about it, but I do see plenty of others.  Do you know why yours disappeared?

If it's true that we're really not allowed to mention other virtual worlds by name, then LL has become even more short-sighted and draconian than I'd thought.   Somebody aught to tell them that discussing other VW's is GOOD for SL, not bad.  Blocking discussion only ever hurts the one doing the blocking.  Remember, for example, when that virtual world that rhymes with "blactive blerlds" decided it would be a good idea to instantly boot anyone who types the words "Second Life"?   Not a lot of people use that one anymore.

[Drongle McMahon]

I see no reason to disagree with Chose on this issue. Chosen has described the position of people who cannot accept the ToS because they uploaded work for hire, for which they are not the copyright holder and therefore do not have the right to grant  the rights demanded, and cannot affirm that they have that right. The number of people in that position is probably small, but there is another, much larger, class of user who is equally prevented from accepting the ToS. That is anyone who ever uploaded anything (texture, model, sound,...) which was not their own creation or in the public domain. For anything else, they don't have the right to grant the demanded license. Therefore they cannot affirm that they do, which they would be doing if they acceptd the ToS. I am pretty sure there will be hundreds, if not thousands of users in this situation. I would be surprised if a substantial proportion did not make the mistake of assuming it was not retrospective, and accepted the ToS, thus making a false affirmation. Given that this was quite forseeable in the absence of any explicit statement about the retroactive application, which could easily have been included, I think this is where the ToS is weakest. Even so, it doesn't look like much of a weakness to me.

[Chosen Few]

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Manifestation wrote:

Dr. kervorkian is a fine example, even with someone's permission you cannot break the law. Theft is theft, what's all the worries for? 

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No laws are being broken here. We're not talking about theft.

It's about agreement, and non-agreement.  If you agree to the new TOS, then you agree that LL has license to do whatever they want with your content.  That's not theft; that's licensing.

Where the worry comes in, as has been stated at length throughout this thread and others, is that our granting unlimited rights to LL (or to anyone) can potentially cost us dearly.  I take it from the wording of your post that your'e not someone who makes your living as a digital artist.  For those of us who do, this is a huge deal, entirely worthy of worry.

 

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Manifestation wrote:

That little accept to the terms and service doesn't even constitute a contractual agreement.

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Actually, yes, it does.  It's what's known as a "clickwrap agreement".  In the vast majority of cases, as long as the full text of the agreement is on the same page as the button, so that the you can easily read the terms before you click to agree, the court will consider the clickwrap to be a binding contract. 

LL does their due diligence, in this regard.  The popup window from the log-in screen says right at the top, "Please read the following Terms of Service and Privacy Policy carefully.  To continue logging into Second Life, you must accept the agreement."  The full ducoment is presented right below that statement, the "I Agree" checkbox is all the way at the bottom, and you cannot click to continue unless you've agreed.  This demonstrates clearly that LL has a reasonable expectation that you will know what you're agreeing to, before you agree.  Thus it's a contract.

 

Here's an interesting side note.  It's not required that you actually do read the agreement, in order for it to be legally binding.  There's no law against stupidity, and the courts obviously can't allow "I didn't read what I signed" to be a defensible argument.  If you're stupid enough to agree to something without reading it first, that's your own problem.  

What matters, as far as the court is concerned, is that you were in fact given the opportunity to read the agreement, and notice that you should do so, before proceeding.  As long as those conditions are met, the clickwrap is a contract.

 

For more information on this subject, this article from the Electronic Frontier Foundation is worth a read.  It explains it all, quite well.

 

 

[Darrius Gothly]

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Rya Nitely wrote:

Here's another scenario.

Would LL have full rights to do whatever they want with my boats? The scripts in these belong to my partner, and I can't remember the last time he logged into SL. I can use these scripts exclusively in our boats and sell these as copy only. It's in our contract.

The animations I use in these boats were bought over a 6 year period. Some of the creators haven't logged into SL for years. I don't have the right to give SL unlimited use of them.

So, how can LL sell my boats outside SL? This is just an example of the mess they will have deciding what they have full rights to and what they don't.

well?

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This is a very sticky issue. Remember that one clause of the new ToS states that YOU warrant to LL that you have all rights necessary for them to re-use or resell your uploaded items in any way they wish. Since clearly you have used components of your builds to which you do NOT have full rights, you are immediately in violation of the ToS.

If LL does indeed use your boats, perhaps reworking them a little bit to improve their saleability, but then includes with them some of the components to which you do not have full rights, that causes a conflict with the original creators of those components. If one of those original creators happens to spot your boat for sale somewhere other than on Second Life and then subsequently decides to take legal action, their attorney would do some basic research and wind up at the conclusion that the "offending party" is you .. Rya Nitely .. not Linden Lab.

The creator would then need to pierce the anonymity shield to find out who the real human is behind the avatar then mount a legal action against you .. John Doe .. aka Rya Nitely in Second Life. Again, not Linden Lab.

I blogged about this mess, and frankly I think Linden Lab's attorney's did a very good thing from their point of view by creating the language they have now and sliding it in with so little fanfare. By the time the community et al figured out what was up, the 30-day time limit to file an official protest had passed.

Then there's the whole question of what would happen to someone that DID file an official protest. Would LL simply decide that since they refuse to accept the ToS as it stands that they no longer have rights to use the service? Would they reply with a "You have 30 days to retrieve all valuable content from your account" after which they would simply delete it without any remorse? If they DID send you sucn a notice, could you say "but wait a minute, I still want to use Second Life. I just think your terms are outrageous" and still keep your account active?

Messy messy MESS-EEEE! Whatever happens next, it's not going to be within the halls of Forums or User Groups. It's going to be in the court system .. and it's either going to be a small number of big income earners or a large contingent of small- to large-earners joining together in a class action lawsuit.

[Chic Aeon]

I WAS sort of kidding. Anyone it seems can report to the moderators so seems safer to talk around things rather than have threads (some quite useful) disappear

[Chic Aeon]

You and Chosen pretty well wrapped up the mess in a big bow . It isn't a pretty bow of course, but one that most of us failed to realize was such an enormous issue. I was in the "doesn't apply to previous stuff" camp as that seemed more logical and perhaps because CG Textures did not make their announcement cover goods retroactively. Still I can see how the wording could be interpreted the other way -- and many lawyers (supposedly) have attested to that. And as you said and as I have said many times, we won't know until the TOS is tested -- and it is bound to be.

We can't REALLY know if we have offending items in our inventory. Who keeps track of all the full perm textures and animations we have purchased or picked up in hunts or on the marketplace -- where the owners have left SL? There are very few content creators that make their items completely on their own.   I do know that I am safe AFTER the click through contract .

It seems very clear that LL is not only covering themselves with this document --- knowing full well that most folks would just click through, but making it so THEY can present OUR goods as "legal" in whatever may happen down the road -- planned now or not.

One thing good that has happened from this -- it is a reminder to take the time to read any new TOS. Of course I think the new one now says they won't really let us know about changes and WE are responsible for finding newness -- an even scarier thing.  So each morning we get up and check the very long and complex TOS before logging in?  Better perhaps just not to log in. It's looking that way.  

EDIT: I tried to find the statement that seemed to indicate click throughs may not happen in the future. I can no longer find it, but there is other wording that is dubious and "could" mean that. Oh what a tangled legal web we weave.

 

And then again there are a whole lot of people who are just ignoring this and going about SL business as usual.

I was listening to a virtual world panel show last night. Lots of communities have apparently left this grid for others y (one taking up 32 sims).  I noted the other day and I just checked again now, that number of people inworld no longer comes up on either viewer - FS or LL. An interesting change.

It sorta feels like Rome is in flames.

 

[Darrius Gothly]

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Chic Aeon wrote:

[...] 

I noted the other day and I just checked again now, that number of people inworld no longer comes up on either viewer - FS or LL. An interesting change.

It sorta feels like Rome is in flames.

 

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Umm .. it shows for me.

[Toysoldier Thor]

@ Chosen,

When it comes to whom has more past experience on Contract law and in particular all the legal / court interpretation of the extent to which the authoring party of these contracts can arbitrarily state new claims/restrictions on the non-negotiating party (such as is the LL TOS) - based on what you are saying - you clearly have more expertise than I.

But I feel your beliefs are based on your interpretation of what the courts would consider to be "unreasonable" new terms and therefore an unconscionable contract.  If you believe ALL CREATORS participating in SL do so only as an entertainment / hobby and therefore they could simply walk away from their SL existence without inflicting any financial harm, legal/contractual suffering, or personal damage, then I would agree with everything you say. 

BUT.... what if your understanding is flawed on this point?  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?

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. 

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.

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

Your RL personal condition is such that you cannot hold a RL job (i.e. physically challenged, etc.).  But 5 years ago you discovered SecondLife and not only fell in love with SL but you realized your creative skills had value in SL.  These skills allowed you develop a very successful business operation that pretty much was exclusive to the SL world.  The content you created was special and unique to SL's virtual world.  AND... after reading the TOS 5 years ago as well as the several versions that followed over the years... the level of rights requested by LL to your content in SL was deemed acceptable.

Over the years your SL virtual business has become large and very successful and the income from this business within SL makes up 80% or even 100% of what you use to live on in RL.  Your content inventory became large and you have built up a very large customer base that you are servicing daily.  Yo uare so large that you have brought on sub-contracting creators both inworld and from 3rd party sources to develop your new creations.

Then on Aug 16th LL comes out and release a new TOS and the wording in this new boilerplate contract that you have NO SAY in... now states that LL wants full unrestricted rights... and as you believe... not only to the new content that is uploaded after this date... but also the content that you have created over the past 5 years.  Much of it with co-creators not participating directly in SL and whom had no say in agreeing to any SL TOS.  You simply CANNOT agree to these terms for what ever reason you have.

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.  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?

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?

[Alicia Sautereau]

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Toysoldier Thor wrote:

*snip*

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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

[Gaia Clary]

But the TOS clearly says "all or any portion of your User Content". So where can i derive the unwritten conotation: "which is uploaded starting after the date where you accept the new license terms" ? For me this sounds pretty much like a "can't be because it can't be" argument.

[Toysoldier Thor]

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Gaia Clary wrote:

But the TOS clearly says "

all or any portion of your User Content

". So where can i derive the unwritten conotation: "which is uploaded starting after the date where you accept the new license terms" ? For me this sounds pretty much like a "can't be because it can't be" argument.

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And Gaia (apologies on name spelling Gaia)... that is why I personally believe that IF LL's TOS is clearly stating that this latest TOS allows them new gained rights to our content - even to content that previously was uploaded under earlier acceptable TOS terms... it would legally place LL's recent TOS into a possible court ruling that "part of this contract are unenforceable since the terms are not reasonable to accept by the non-negotiating party" and therefore its an unconscionable contract.

My understanding that LL's TOS did not include all prior uploaded content to that of Aug 16th was more so based on thenaive belief that the LL Lawyers were either smart enough to know the position this would put the TOS into and avoid this potential ruling OR that they didn't have the nerve to know it was unconscionable and did it anyway.

Since as you pointed out - it appears the TOS states "ALL" content... then maybe LL Lawyers are more ignorant than I had initially believed or they have more nerve to violate our rights as I would have thought.

IMHO

[Coby Foden]

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Kwakkelde Kwak wrote:

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Coby Foden wrote:

Ok, I sent them email notifying them about their error in the company name.  :matte-motes-big-grin: :smileywink:

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I'm sorry to force your hand like that and hope you don't mind. I just couldn't help myself

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No problem at all. :smileyhappy:

Now Renderosity have corrected it to read: "Second Life is owned and operated by Linden Lab."

http://www.renderosity.com/renderosity-products-not-allowed-at-second-life-cms-16783

 

[Kwakkelde Kwak]

The only reason I can think of is that CG Textures mentioned you can still use the textures you've already uploaded to SL.

They seem to have a much better understanding of what's workable than LL.

If you ask me the LL ToS are very clear, the use of all user content will be licensed to LL, no exceptions, no timeframes.

[Gaia Clary]

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:

[Rahkis Andel]

That's a very moving argument. If there is a class-action lawsuit against LL, I hope that argument is given verbatim.

The only problem is, even if this is taken to court and any part of the TOS is deemed unenforcable, there is already language in the TOS that states that all other portions will still remain valid. It won't make me feel any better to know that I still can't login to SL or open a new business there, because that is what I intended to do before all this happened.

It sounds like this will be a VERY uphill battle.