Inworld Legal Panel on TOS - Details

[Phil Deakins]

I haven't listened to it yet but I do have a couple of points at the moment:-

1. Someone in this thread said that LL actually does claim ownership of uploaded stuff. They don't. If they did, they would need o grant us permission to use the stuff we uploaded, and they haven't done that. They do claim all the rights that an owner has, except actual ownership. So, if the legal person said they claim ownership, s/he is mistaken.

2. Don't take anything that a lawyer says about a civil dispute like this as gospel. Remember that, when a civil dispute goes to court, each side has a lawyer, and each lawyer thinks that s/he is right and will win, but one is always wrong and loses.

[Qie Niangao]

Is the transcript available yet? Or do we know where it will be posted, once it is available (so we can check for its availability ourselves)?

I'm particularly interested in two things: What the lawyers had to say about the fact that these terms are practically identical to a whole bunch of recent ToSs from services with user generated content. (There may be significant differences in the kinds of UGC involved, so I'm not saying LL should have adopted this language, but I'd like somebody with current IP law background explaining specifically how and why that language works fine for other services and not for SL.)

The second thing I'd like to understand is how far such licensing terms can go in the direction of IP ownership (without actually claiming ownership) and still preserve DMCA safe harbour provisions. Obviously, if LL actually owned all this content, they'd be liable for damages for every ripped mesh, texture, or trademark in SL -- which is to say, they'd be out of business. They're not claiming ownership, but there must be some line they dare not cross.

[Teagan Tobias]

A generic response, not pointed at anyone, just a comment.

 

I don't think I disagree with the new ToS completely, I think what I disagree with mostly is how it was implemented. Its a little like leaving you home to get a gallon of milk and coming back home and having someone standing at your front door with a paper for you to sign. Sign to get in your home, but when you sing, your home belongs to us, have a good day. It should have been, you have a week to sign or something similar that.

I think the one thing I do like about the new ToS, well not really like, but it drives home to others (creators?) how I have felt for years. What... I paid for it and its does not belong to me. I have absolutely no rights to it at all. That has always bothered me, and yes I know and believe it or not I do understand the difference between creating something and purchasing something. But the concept is the same, like it or not (it belongs to me). You do not, I repeat, do not, feel any more violated by this new ToS than I do and have felt on the two matters. Welcome to my world.

But I do feel a little better having everyone in the same boat, so to speak.

[Phil Deakins]

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Dartagan Shepherd wrote:

Well, that's a nice surprise. Thanks for requesting it.

@Toy: True. Did you catch the one answer to the question of whether LL would do this if they were pondering X, Y or Z with the company. A short and sweet "yes".

It's still subjective, and yet it still points to a purpose beyond protectionism.

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It doesn't mean that that's the reason for the ToS changes though.

If you took of your slippers and put on a pair of shoes, someone could ask, "Would he do that if he is intending to go outdoors?" and the answer would be straight yes. But you may not have plans to go outdoors at all. You may be expecting visitors, for instance. So the short answer doesn't point to what you imagine it does.

Also, the short answer wasn't given as an opinion as to what is behind the ToS changes.

[Dartagan Shepherd]

I think the transcrpt will be available soon, but worth holding off replying on some of that until you've read it. The way we would boil it down in the forums isn't going to cover the broader less specific way it was presented. We tend to provide our own interjections.

They did menion though, and I do believe that LL has pretty much thrown out the protection that safe harbor has previously provided them. They're obviously now a vested party in the content according to the TOS, so safe harbor is much less a defense.

[Dartagan Shepherd]

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Phil Deakins wrote:

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Dartagan Shepherd wrote:

Well, that's a nice surprise. Thanks for requesting it.

@Toy: True. Did you catch the one answer to the question of whether LL would do this if they were pondering X, Y or Z with the company. A short and sweet "yes".

It's still subjective, and yet it still points to a purpose beyond protectionism.

---

It doesn't mean that that's the reason for the ToS changes though.

If you took of your slippers and put on a pair of shoes, someone could ask, "Would he do that if he is intending to go outdoors?" and the answer would be straight yes. But you may not have plans to go outdoors at all. You may be expecting visitors, for instance. So the short answer doesn't point to what you imagine it does.

Also, the short answer wasn't given as an opinion as to what is behind the ToS changes.

---

Thus the word "subjective".

 

 

[Perrie Juran]

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Phil Deakins wrote:

I haven't listened to it yet but I do have a couple of points at the moment:-

1. Someone in this thread said that LL actually does claim ownership of uploaded stuff. They don't. If they did, they would need o grant us permission to use the stuff we uploaded, and they haven't done that. They do claim all the rights that an owner has, except actual ownership. So, if the legal person said they claim ownership, s/he is mistaken.

2. Don't take anything that a lawyer says about a civil dispute like this as gospel. Remember that, when a civil dispute goes to court, each side has a lawyer, and each lawyer thinks that s/he is right and will win, but one is always wrong and loses.

---

The lawyers were pretty clear about the Court being the "final answer."

There are certain things that are settled points of law.  The Courts have spoken.

They did lament the fact that some of the cases against LL were settled out of Court before the Court ruled.  Hence they have no clear guidance from the Courts on some of the issues involved.  So they state that, "This is how we'd argue the case."

Throughout the entire presentation they all were very careful about what they said.

But yes, some people may ignore this and jump the gun.

 

ETA, at one point in the discussion one of the attorneys was reluctant to answer a question because she didn't want to give LL any ideas on another draconian (my word) thing they could add to the TOS.

[Qie Niangao]

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Dartagan Shepherd wrote:

I think the transcrpt will be available soon, but worth holding off replying on some of that until you've read it. The way we would boil it down in the forums isn't going to cover the broader less specific way it was presented. We tend to provide our own interjections.

They did menion though, and I do believe that LL has pretty much thrown out the protection that safe harbor has previously provided them. They're obviously now a vested party in the content according to the TOS, so safe harbor is much less a defense.

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Thanks. I'll wait to see those before expounding much further.

I'm just thinking it ironic that the most community-minded thing to do might end up being to find particularly aggressive IP litigants (Disney?), rip them blind, and upload with reckless abandon, leaving LL holding the bag.

Not that I'd ever suggest such a thing. :whistle:

[Apelles Luna]

I smell a Linden alt...

[Ceka Cianci]

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Apelles Luna wrote:

I smell a Linden alt...

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i smell a godwin

[Darrius Gothly]

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Qie Niangao wrote:

Thanks. I'll wait to see those before expounding much further.

I'm just thinking it ironic that the most community-minded thing to do might end up being to find particularly aggressive IP litigants (Disney?), rip them blind, and upload with reckless abandon, leaving LL holding the bag.

Not that I'd ever suggest such a thing. :whistle:

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The problem with that strategy is this:

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Terms of Service - Section 2.3, Para 2

:

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.

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This says basically that you indemnify Linden Lab against any legal action that some third party might take regarding IP Theft. In other words, you are left holding the bag and LL is blameless. So Disney would come after you and not LL.

Oopsie! 

[Qie Niangao]

Oh sure, but that would require that every single uploader can be found by LL to protect itself in court. The way LL indemnifies itself can't be with unreliable promises of (mostly) anonymous uploaders, but rather as provided by DMCA's safe harbour as a common carrier -- which wouldn't apply if they were to claim ownership of uploaded IP. The question is whether they've already gone so far that they no longer enjoy that provision.

[Darrius Gothly]

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Qie Niangao wrote:

Oh sure, but that would require that every single uploader can be found by LL to protect itself in court. The way LL indemnifies itself can't be with unreliable promises of (mostly) anonymous uploaders, but rather as provided by DMCA's safe harbour as a common carrier -- which wouldn't apply if they were to claim ownership of uploaded IP. The question is whether they've already gone so far that they no longer enjoy that provision.

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Not at all. LL does have the real-life details for people that are uploading mesh, but that's beside the point. The ToS states quite plainly that the uploader is the party responsible. It's not LL's job to find the particular person, that's the job of the suing party. All LL is required to do is stand responsible if they are, but since they disclaim all fault in the ToS then they cannot be sued.

When it comes to DMCA Takedown Notices, all LL is required to do is to remove the items specified in the notice. If they wish, they can go further and track down all copies too (as they have done with some animations that escaped into the wild and were eventually ripped out of the inventories of 1000's of users), but they are not REQUIRED to do that unless it is specified in the notice.

With that said, if a large organisation feels it has been substantially damaged by the sale of stolen content within Second Life and they wish to file suit to recover those damages and stop the distribution of their content illegally obtained by some anonymous party, their first roadblock will be the fact that the ToS states that LL is not in the business of verifying the ownership rights for everything uploaded. It says that that duty is on the uploader, and thus the uploader is the party responsible .. not LL.

Granted, a smart law firm would work first to strike down the ToS and the Arbitration requirements. Once that was done then they could go after LL in court, but they'd have to prove LL knew it was illegal content. For some things that's pretty obvious, but it's still quite reasonable that LL (and its employees and assigns) could argue ignorance of the true ownership of most things.

They've done a good job protecting themselves and hanging us out to dry. They paid good money and got an agreement that goes a long way toward allowing them to commit IP Theft with impunity. But I think that it will eventually be proven in court that they went too far and produced a "Contract" that is Unconscionable and thus ... worthless. Eventually.

[Qie Niangao]

The reason DMCA has a safe harbour provision is to protect deep pocket carriers from having to face IP rights holders in court. If LL cannot claim common carrier status, they no longer have that protection, so litigious IP owners could sue them directly -- and they have enough money to make it worthwhile, in contrast to scattered, hard to find uploaders.

LL can say whatever scary things they want to uploaders, but if LL were to actually claim ownership (which they don't), litigious IP owners would have no need to fret about LL's little ToS.

[Darrius Gothly]

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Qie Niangao wrote:

The reason DMCA has a safe harbour provision is to protect deep pocket carriers from having to face IP rights holders in court. If LL cannot claim common carrier status, they no longer have that protection, so litigious IP owners could sue them directly -- and they have enough money to make it worthwhile, in contrast to scattered, hard to find uploaders.

LL can say whatever scary things they want to uploaders, but if LL were to actually claim ownership (which they don't), litigious IP owners would have no need to fret about LL's little ToS.

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We are discussing two separate events and two separate procedures. So to help clarify what's going on, I'll pull them apart and discuss them separately.

First off is the DMCA (Digital Millennium Copyright Act) agreement. In the event that a copyright holder identifies something being sold, displayed, performed, etc. in Second Life without their permission ... and possibly with an attribution that is not theirs then they have a procedure to follow that involves submitting specific information to Linden Lab using the DMCA agreement as the requirements source.

The details needed and the format of the information that must be supplied is spelled out very carefully in the DMCA page on Linden Lab's site. Linden Lab then has specific requirements they must meet in order to maintain their Safe Harbor (or Safe Harbour) status.

The DMCA process applies strictly to the situation where a user of a Linden Lab platform (such as Second Life) uploads and claims that something is theirs when in fact it is actually owned by someone else. More precisely, when the RIGHTS for use, distribution, etc. are owned by someone else. In this case, Linden Lab is not gaining anything from the disputed property, they are not further distributing it, nor are they using it to create derivative works, etc. It simply exists on their platform in the same state it was created by the uploader.

However there is another situation that comes into being when Linden Lab, under the authority of the new ToS, takes uploaded content, copies it to some other platform (owned by Linden Lab or not, it doesn't matter), uses it to make a derivative work, combines it with something else such that it is a component of a larger piece, etc. In this case the DMCA agreement has no bearing. The original rights holder cannot simply file a DMCA Takedown Notice to force Linden Lab to stop selling, distributing, copying, etc. the disputed IP. Instead they must file suit to obtain remedy in a court of law.

In this situation, Linden Lab is "safe" from being named in the lawsuit because of the specific clause I cited earlier that claims the original uploader is the ONLY responsible party in the action that caused the disputed content to come into Linden Lab's possession.

In the DMCA case, Linden Lab is the controlling authority over the repository for the disputed content. In the lawsuit due to ToS usage case, Linden Lab is taking action with the disputed content. However because of the provisions of the ToS they are innocent of any wrongdoing. This distinction is very important because it determines the method of remedy that can and should be used by the "injured" party.

In your original suggestion (purposely "borrowing" IP from a known heavy hitter such as Disney, then dumping it all onto Linden Lab's servers to let them sort it out), most likely LL will not use the content to create new stuff, won't copy it to make income from it, and won't combine it to create something new and bigger. They will just leave it where it lands and then wait patiently for Disney to file a DMCA Takedown.

However, if you can sneak a bunch of stuff from a heavy hitter onto LL's servers, and make it enticing enough for LL to "take the bait" and wind up using it for some killer income maker or other product .. and THEN you can convince the heavy hitter that 'Look! See that?!? Linden Lab has stolen YOUR STUFF!", the heavy hitter's legal team would contact LL, notify them of their intent to sue, and then ask that LL cooperate and provide as much information as they have on the original uploader.

The heavy hitter's lawyers will do this because they will have already read the ToS and realized they cannot sue LL unless they have VERY good proof that Linden Lab was aware the content was stolen, did not belong to the uploader and went ahead and used it anyway. That level of proof would be dang hard to come by, and would probably have to be something like a whistle blower that was willing to testify to specific conversations or perhaps if they came into possession of emails and meeting minutes that specifically mentions that LL knows who the real owner is but decides to use the IP anyway.

I hope I've made it a bit more clear as to why trying to "sneak something poison" into LL's kit bag would be a fruitless venture and most likely would boomerang on you, winding up with you spending time making little charcoal marks on the painted wall of your cell for every day of your "visit", instead of having the intended effect of giving Linden Lab some much deserved legal heartburn.

Honestly, I think the most fruitful pursuit will be to work on the "Unconscionable" angle and push LL's feet into the fire they lit with their own agreement. I believe it is quite clear and reasonable to claim that their agreement is too heavy-handed and in no way strikes a reasonable or responsible relationship between them and us. I also happen to think our position is strong enough that we can and should keep pushing on that button, refusing to back down or "settle out of court" so that they cannot just undo everything in a few months once the hordes are pacified and the spotlight has moved onto some other panic situation.

[Qie Niangao]

For now we're going to have to agree to disagree on this. Well, not entirely, inasmuch as I'd never actually upload purloined IP and would never in fact advise anybody else to do so -- least of all in any way that could be tracked to RL identity. We do, however, disagree about how effectively LL could defend itself from litigants based on the wishful words of its ToS, and about the viability of the "unconscionable" claim. I'll be interested in what the lawyers actually said about that, once the transcripts are available. I'm not really seeing grounds to bring such a claim to court unless / until LL actually acts in a way that exercises some unconscionable part of the ToS, which I wouldn't expect to happen any time this decade.

(Similarly, the real effect of losing DMCA safe harbor would await a suit from somebody with standing, but the difference is that LL may respond to that risk over which they have no control, whereas they may stay out of trouble simply by not doing anything "unconscionable" with content over which they've made indefensible claims.)

[Darrius Gothly]

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Qie Niangao wrote:

For now we're going to have to agree to disagree on this. Well, not entirely, inasmuch as I'd never actually upload purloined IP and would never in fact advise anybody else to do so -- least of all in any way that could be tracked to RL identity. We do, however, disagree about how effectively LL could defend itself from litigants based on the wishful words of its ToS, and about the viability of the "unconscionable" claim. I'll be interested in what the lawyers actually said about that, once the transcripts are available. I'm not really seeing grounds to bring such a claim to court unless / until LL actually

acts

in a way that exercises some unconscionable part of the ToS, which I wouldn't expect to happen any time this decade.

(Similarly, the real effect of losing DMCA safe harbor would await a suit from somebody with standing, but the difference is that LL may respond to that

risk

over which they have no control, whereas they may stay out of trouble simply by

not doing

anything "unconscionable" with content over which they've made indefensible claims.)

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*nods* Understood and agreed (to disagree that is. *grin*) I think we've done a good job putting both perspectives into print so that others can read both and make their own decision. Until such time as we have a legal decision (at best) or a legal opinion (still acceptable), I think we are limited to our own personal opinions.

It does make me wonder though .. if they are concerned over losing Safe Harbor status, the ToS as it's written now would be a bad thing to do. It strikes me as being similar to taking off your seat belt right about the time your friend, the crazy driver, decides to "open 'er up and see what she'll do!"

But then again .. we ARE discussing Linden Lab here. *snarky grimace*

[Anaiya Ahren]

Did you know that in order to access the "cancel subscription" page so you cancel your premium subscription, that you have to agree to any TOS changes that occured since the last time you accessed your account?

 

 

[Perrie Juran]

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Anaiya Ahren wrote:

Did you know that in order to access the "cancel subscription" page so you cancel your premium subscription, that you have to agree to any TOS changes that occured since the last time you accessed your account?

 

 

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You couldn't buy or sell Linden Dollars either without agreeing.

Making it difficult to cancel your account under the terms of the old TOS without agreeing to the new TOS might be unconscionable.

You could make written request to gain access to your account in order to "settle your affairs" without agreeing to the new terms.

I don't think LL's refusal to do so would bode well in a Court.

In an apartment complex I lived in the land lord sold the complex to a new owner.  The new land lord tried to raise the late fees for overdue rent mid-lease.

One of the tenants took them to court.  The land lord tried to say they had the right to because the lease granted them the right to make new rules as may be needed to keep the place liveable.

I'm summarizing here but the Court found they were over reaching, that the late fees had nothing to do with keeping the place liveable.

The land lord then proceeded to make life difficult for the tenant by using their right of entry to show up every day to inspect the apartment.

The tenant asked the Court for the right to terminate the lease with out penalty over this abuse.  The Court granted the request, giving the tenant reasonable time (60 days) to find new housing AND ordered the land lord to stay out of the apartment and away from the tenant with out the Court's permission.

Pretty much all of us who lived there moved as soon as our leases were up.  Because word got out around town what kind of land lord he was he had a very difficult time filling the vacancies and wound up having to sell the complex.  He lost a ton of money over all of this.

 

[Amethyst Jetaime]

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Teagan Tobias wrote:

A generic response, not pointed at anyone, just a comment.

 

I don't think I disagree with the new ToS completely, I think what I disagree with mostly is how it was implemented. Its a little like leaving you home to get a gallon of milk and coming back home and having someone standing at your front door with a paper for you to sign. Sign to get in your home, but when you sing, your home belongs to us, have a good day. It should have been, you have a week to sign or something similar that.

I think the one thing I do like about the new ToS, well not really like, but it drives home to others (creators?) how I have felt for years. What... I paid for it and its does not belong to me. I have absolutely no rights to it at all. That has always bothered me, and yes I know and believe it or not I do understand the difference between creating something and purchasing something. But the concept is the same, like it or not (it belongs to me). You do not, I repeat, do not, feel any more violated by this new ToS than I do and have felt on the two matters. Welcome to my world.

But I do feel a little better having everyone in the same boat, so to speak.

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The concept between creating something and buying something in world or even in RL is not the same at all.  The two concepts are far different. 

When you buy something in world you only buy the rights to use it as long as you have an account with SL and SL exists, (unless you buy something with shorter terms that you agree to when you buy it, such as a SL Pet).  How could it be otherwise?  Everything in world is generated by pixels that are created by LL anytime the item is rezzed based on what you can think of as a pattern that was created by the creator of the item.  If you leave SL or LL pulls the plug, you can't pack the original item in a box and take it to a new house like you would be able to do with things in RL that you own.  You can't legally export the recipe or pattern to make another either.  If you buy a RL designer jacket  you can't legally sell the pattern  to that jacket or use it to make new ones without a manufacturing license from the IP rights owner.

If I create something outside of SL and upload essentially the pattern to make it, I on the other hand can take that item and use it outside of SL because I own the pattern and the IP rights to it.  I have the files needed to reproduce it, I can see it on my screen using my own software, and I can take the pattern to another platform and use it to make the item there.  I can even take the design to a RL manufacturer and have it made in RL.

Creators IP rights are a far different thing from ownership of an item you purchase either inworld or RL.

Out of curiosity, if you did actually own something in SL what could you do with it different than you can now?  Now you can transfer the time to another avatar if its transferable, or you can copy something to your hearts content, but unless you buy something full perm you can't copy and transfer it over and over. 

What LL has essentially done is say come to my house but if you enter the doors everything on your person or that you bring in is ours to do with as we want to. 

So feel smug if you want to.  However if the TOS ends up driving creators away from SL there won't be anything for you to buy under a user license or to actually own.  You'll still have your current inventory but if you lose anything or it breaks you won't be able to replace it. 

[Ceka Cianci]

actually this is about content owners..

an owner can be the creator or someone that bought the IP rights from a creator..

IP rights owners are not always the creator.

 

just thought i would mention this since it gets left out a lot of the time..

[Catherine Cotton]

 

"You couldn't buy or sell Linden Dollars either without agreeing.

Making it difficult to cancel your account under the terms of the old TOS without agreeing to the new TOS might be unconscionable."

Tidy little spot LL has folks in. Can't stay, cant easily leave.

Someone needs to make a machinama about the current police state of Second Life. Unfortunatly they would have to agree to the tos by doing....welcome to the rabbit hole Alice.

[Catherine Cotton]

If LL is claiming all copy right from here on out.  (From those who have already agreed to the new tos)

Then those that have agreed to the new tos have also forefeited their right to file any DCMA; against anyone on the Second Life platform, and in real life. Once copy right is given up, its given up.  Since LL claims all copy right, it would then become their right to do so. 

Correct?

If Sally rips off John, and resells his stuff for a profit; John can't do a damn thing about it.  Sally can sell all of Johns goods.  It's up to LL to decide if they want to file a dcma against Sally.

Since its now LL copy right they can go after Sally.

What are the chances of LL following up with a DCMA?

If everyone decided to copy everyone else stuff, and sell it.  LL would have to go after everyone.  I am not suggesting anyone do this.  However given their history of customer support sometimes they just make it too easy to see the obvious issues with their for the greater good actions. 

Also how does this now affect Linden Lab/Second Life safe harbor status?

Here is how this played out;  if you pushed that "agree" to the tos button.  You have no right to complain when someone rips your stuff,opens shop right next to you and undersells you.  It's not your property, it's not your right.

[Phil Deakins]

You are making the mistake of thinking that LL claims copyright. They don't. They claim rights to do whatever they want with everything but they don't claim ownership of the copyrights. So it's up to the copyright owner to file DMCAs, and that's not LL.

[Kwakkelde Kwak]

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Phil Deakins wrote:

You are making the mistake of thinking that LL claims copyright. They don't. They claim rights to do whatever they want with everything but they don't claim ownership of the copyrights. So it's up to the copyright owner to file DMCAs, and that's not LL.

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But LL doesn't have to act on your DMCA charge. They can simply say they let the other party use your content. LL has the right to distribute your items in any way they like, right? They're allowed to give it away (or have it taken from SL).