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Chelsea Malibu

Content Piracy and the New TOS

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I have been getting numerous questions about content piracy and the new TOS in world so to save time and allow room for additional comments, I felt it would be beneficial to post my "opinion" here.  (Note: please realize that this is not to be construed as legal advice but merely my legal opinion on the issue of the new TOS and how it could affect you.)  As many of you know, content piracy and protection is my area of expertise so, I hope I can assist with a little information, though it may not be what you want to hear.

There are two parts to the TOS which affect your rights as a copyright holder that will now affect how you can protect your content or even if you can as the ability is to do so is were the most confusion exist. 

The first part is in the new exploitable and limitless rights you now give Linden Labs with your content.  When you upload content into SL, though you do retain your rights to that content, you also give Linden Labs fully exploitable and limitless rights to your content.  In other words, they have the same rights to your content that you do even down to being able to give those rights to others.  Yes, its sucks and yes, in my opinion it is far over reaching and needs to be changed but for now, it is what it is and its a contract that you agreed to from that date forward.

What this means is that its not just your content, but theirs to protect.  This is where it gets tricky and yet to be determined as to how it will play out is in the enforcement of these rights.  Historically, LL has tried to avoid enforcing rights and when they finally decided to police this area, I am sure it became a logistical mess.  I have seen a lot of frivolous charges by creators against creators which I am sure, was not easy on resources for Linden Labs.  I truly believe that a large part of the decision to write a TOS like this was in fact to reduce conflicts by positioning themselves as owners of the content themselves.

Another part of the new TOS which personally, I am very uncomfortable with, limits what you can do in the enforcement of rights.  It states that only Linden Labs can enforce your rights, not you and that you give them the full authority to do so.  This means in short, that you cannot go after anyone for piracy, only they can.  Since they too own the rights to your content, they would be the ones who need to make the decision to enforce those rights with regards to Second Life.

Please keep in mind too that this ONLY relates to content that you uploaded within SL that is accessible to the public.  If you choose to delete all copies of the works including from your inventory or if you keep it on a private island that is not accessible to the public, it is exempt from most of these provisions.

So the questions remain, will they enforce copyrights for the creator of that content? What will be their policy to protect your revenues and your content? 

As for those of you selling full permission content, this appears to negate your agreements to your buyers as I see no method of enforcement that will work at present.  If another lawyer does, please feel free to post it in this thread. Though you can make and state any agreement between you and your customers, in the end it will be up to Linden Labs to validate it and enforce it.  I see no reason why they would enforce your agreements since they also state in the TOS that this is between you and the person you did business with.  Meaning, it now becomes little more than a hand shake but this has always been the case.

So in the end, what do we do?  Options have been posted here that all depend on your needs and wishes as to which to take.  As for any digital good, I suggest precautions to protect them from piracy such as copy bot devices, server side delivery and visible water marks that render display products worthless.  As for addressing the new TOS, we need to let Linden Labs that we believe they have overreached their authority and that we as creators find it as unacceptable as we in the legal community also find this needs to be changed.

 [edited for spelling errors]

 

 

 

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Thank you for your post.

A question on your words :

" what it is and its a contract that you agreed to from that date forward."

 

Does the above text mean that in your opinion the TOS covers ONLY items uploaded after the mid August TOS? I have only heard a couple of legal folks in that camp. I would LIKE it to be larger of course :).

 

 

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Yes, this will be one of those areas that I am sure will be debated and I can only go by case presidence and contract law in how this might be decided in the event of litigation. 

The TOS says anything loaded into their servers and displayed/performed to the public but I would find it very difficult to believe that any court (or 3rd party arbitrator) would allow this retroactively.  If I were to litigate a case like this, I would contest only content loaded after the change would be affected since you had no idea that this change would take affect before you loaded content before that date.

However, their fallback position is that you can delete these works or not perform them from this point forward.  This might be difficult with content that is already wide spread throughout the system but there might be a system in place to do this such as blacklisting content.

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Chelsea Malibu wrote:

[...]

However, their fallback position is that you can delete these works or not perform them from this point forward.  This might be difficult with content that is already wide spread throughout the system but there might be a system in place to do this such as blacklisting content.

They seem to have covered this eventuality by including Section 2.6 about Deletion. The way I read that section, they can still retain copies to exercise their rights as set forth in Section 2.3. The section reads as follows: (bolding is mine)


:

2.6 You may delete copies of your Content from the Service, and the licenses you have granted for the deleted copies will terminate with certain limitations.

Where permitted, you may delete copies or instances of your Content that you have displayed In-World or that are in your Account inventory through the normal functionality of the Service, including by emptying the trash folder in your Account inventory (such as in Second Life). In such event, the licenses granted by you in this Section 2 shall terminate in the manner provided below, but only for those particular copies or instances of Content that you have deleted from the Service.

 

You acknowledge that this termination will not apply to any other copies or instances of the same Content that you have not specifically deleted from the Service, including without limitation those that may be displayed elsewhere In-World and those that may be in the Account inventories of other users to whom you transferred copies.

 

You acknowledge that the Snapshot and Machinima Content License granted to Linden Lab and other users with respect to your Content will survive any such termination.

 

You also acknowledge that the Service Content License granted to Linden Lab with respect to your Content will survive any such termination solely as follows to permit Linden Lab: (i) to retain server copies of particular instances of your Content, including copies stored in connection with back-up, debugging, and testing procedures; and
(ii) to enable the exercise of the licenses granted in this Section 2for any other copies or instances of the same Content that you have not specifically deleted from the Service, including those that may be displayed elsewhere In-World or exist in other users' Account inventories.

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Yes, you are correct as I had said when the content is widespread across the system.  As such, my assertion that any content uploaded prior to the change will more than likely be found exempt if it were to be questioned in court or with an arbitrator.


That being said, until that time comes, we wont know nor do we know what defense Linden Labs will use though my point was, they "could" try to use this defense.

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Chelsea Malibu wrote:

Yes, you are correct as I had said when the content is widespread across the system.  As such, my assertion that any content uploaded prior to the change will more than likely be found exempt if it were to be questioned in court or with an arbitrator.

That being said, until that time comes, we wont know nor do we know what defense Linden Labs will use though my point was, they "could" try to use this defense.

The comment "... or with an arbitrator" is good news IMO. I have a lot of concern exactly what an Arbitrator might see as allowable and what they will see as not allowable. Your opinion that an Arbitrator might rule in favor of exempting content uploaded prior to the new ToS agreement date is very welcome indeed. Thank you. (And yes, I realize it's just an opinion and not something people should base a serious decision on.)

When it comes to finding and removing all copies and instances of specific content, Linden Lab does have that ability. They have several times demonstrated this by removing animations that were accidentally let loose into the wild. They reached into people's Inventories, sometimes removing animations that were 4 or more copies removed from the original illegally obtained animation. They even reached into the Contents of Objects that were not currently rezzed, and in one particular case reached into the Contents of an Object that was itself in the Contents of another Object (a box prim).

I know because I experienced this capability personally. I was given a Chimera preloaded with a number of stolen dance animations. It came packed in a box prim. The person I got it from had originally obtained it in a box prim, but before passing it to me, made a copy then placed that copy into a new box prim. Through this process, the animations inside were copied a number of times and very probably had been copied by themselves several times before being collected into the Chimera. This pretty much points out the capability Linden Lab has in chasing down illegal copies when they want to. I suspect that chasing down legitimate copies is even easier as people would not be so prone to taking extra precautions when creating copies.

I mention this specific example because I think it would be of great importance should LL try and hide behind the "we can't possibly find all the copies" argument. Past behavior, as demonstrated by situations and instances that were far more technically intractable, would pretty much put the lie to any assertion on their part. That could very well become of extreme benefit to anyone attempting to get LL to remove all copies of their content from their Servers, especially if they are at the stage of Arbitration when "push comes to shove."

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They use a very fair and legitimate arbitration process of former judges and attorneys assigned by the AAA.  As I recall in the past, they used their own arbitrators which to me was laughable.  Few of these cases ever make it to jury trial (though the threat of a jury trial tends to prevent them from getting that far) which in part, is why arbitration works better anyways.

Given what you are telling me in that they cannot effectively remove content, then content uploaded prior to the new TOS could very well be deemed exempt and would assist in any decision.

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Chelsea Malibu wrote:

 

Another part of the new TOS which personally, I am very uncomfortable with, limits what you can do in the enforcement of rights.  It states that only Linden Labs can enforce your rights, not you and that you give them the full authority to do so.  This means in short, that you cannot go after anyone for piracy, only they can.  Since they too own the rights to your content, they would be the ones who need to make the decision to enforce those rights with regards to Second Life.
 [...]

So the questions remain, will they enforce copyrights for the creator of that content? What will be their policy to protect your revenues and your content?

I have a problem with anyone, especially if they have legal experience, coming to this conclusion after reading the TOS.

Fist paragraph of section 2.3:


You retain any and all Intellectual Property Rights you already hold under applicable law in Content you upload, publish, and submit to or through the Servers, Websites, and other areas of the Service, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of other users or Linden Lab in Content that you may use or modify.

Last paragraph of section 2.3:


Linden Lab has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Linden Lab’s cost and expense, to which you hereby consent and irrevocably appoint Linden Lab as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).


You enforce your own rights, (as the law already allowed you to do). Linden Lab only expects to take full control of these issues regarding THEIR rights with respect to your content.


Chelsea Malibu wrote:

 

As for those of you selling full permission content, this appears to negate your agreements to your buyers as I see no method of enforcement that will work at present.  If another lawyer does, please feel free to post it in this thread. Though you can make and state any agreement between you and your customers, in the end it will be up to Linden Labs to validate it and enforce it.  I see no reason why they would enforce your agreements since they also state in the TOS that this is between you and the person you did business with.  Meaning, it now becomes little more than a hand shake but this has always been the case.
 

Second paragraph of section 2.7:

 

 


You acknowledge that the Content of the Service is provided or made available to you under license from Linden Lab and independent Content providers, including other users of the Service ("Content Providers"). You acknowledge and agree that except as expressly provided in this Agreement, the Intellectual Property Rights of Linden Lab and other Content Providers in their respective Content are not licensed to you by your mere use of the Service. You must obtain from the applicable Content Providers any necessary license rights in Content that you desire to use or access.

 

You have every right to your own EULA for your content, provided it does not conflict with SL ToS. LL still claims DMCA protection and has published procedures for you to follow for making a claim against violations. In the end, disputes between users will stay between users - LL involvement will be limited to what they see DMCA protection requires of them; nothing more. I agree that this has always been the case.

 

 

If content piracy and protection is your area of expertise, then you should know that losing DMCA protection would be the single most damaging action that could befall an online service provider that accepts user content in such large scale quantities. The alternative, having to defend themselves against each accusation of infringement, is something that no provider could take on and expect to stay in business for very long. This inability however, is not by itself the determining factor for being eligible for protection. I would be curious to see the outcome of court challenges in this nature, because the distinction between being the service provider and the actual infringer is being eroded by their own choosing.

When uploaded pirated content is known to happen at the levels it does in  Second Life, and by anonymous users, attempting to fall back on blaming the user instead of 'us' as the infringer probably won't survive the first court challenge (in this case of claiming  far-reaching rights). Sure, the uploader is guilty, but so are you. Now you are trying to repeat the failed arguments that brought down file-sharing services, with the addition of owning the content also. Turning a blind eye toward known illegal activity will only bite you in the ass in the end.

I believe the most complications will involve 3rd parties. Texture providers have and always have had their own terms. They normally would have no reason to monitor SL TOS, or any other company's TOS, nor do they have to know of these companies' existence. LL has no authority to decide what rights they have. The only reason they may have needed to comment on usage in SL after this TOS change is because they had already published specific guidelines allowing usage in SL; they basically had to retract the permissions they had previously given their users in writing.

I don't think LL has any intention of directly profitting from user content to the extent the ToS seems to now allow; I don't think they would make it to first base in an attempt to fall behind DMCA protection if they did. The real question I have is whether or not the ToS wording alone is enough to endanger that protection.

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Well let me put it this way. If having to enforce IP rights costs LL say 20 million dollars a year in various expenses and overheads, if changing the TOS in some manner could reduce that to say 3 million dollars a year for the first year, I would think that LL would jump at that opportunity.  Of course if such short sighted behavior costs them long term profits at some point, what is that to LL, a company run by executives and shareholders who would never be 'playing' in SL otherwise?

I wonder if the we, the people who play in SL could scrape up all the 'Linden' shares and buy the company ourselves? Then we could vote on all the issues and it could be like a Democracy or something. hehe :matte-motes-wink-tongue:

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Chelsea Malibu wrote:

They use a very fair and legitimate arbitration process of former judges and attorneys assigned by the AAA.  As I recall in the past, they used their own arbitrators which to me was laughable.  Few of these cases ever make it to jury trial (though the threat of a jury trial tends to prevent them from getting that far) which in part, is why arbitration works better anyways.

Given what you are telling me in that
they cannot effectively remove content
, then content uploaded prior to the new TOS could very well be deemed exempt and would assist in any decision.

I must have not been completely clear Chelsea. Linden Lab is VERY capable of tracking down and removing all copies of illegally uploaded or stolen content. Therefore they should be required to provide that service in all DMCA cases that include the description of illegal content something to the effect of "... and all copies thereof, including but not limited to copies created by manual or automatic means, copies existing in the Inventory of other SL Users, copies included as components of other possibly unrelated products, copies being distributed by any Linden Lab controlled service or software platform...".

Right now the DMCA instructions require the person making the DMCA Claim to cite all locations where the alleged illegally copied content is found. But it is not possible for someone other than Linden Lab to know all the possible locations, especially since each user's inventory is private to that user ... AND to Linden Lab. Thus the only party capable of finding all copies is Linden Lab. This is knowledge they absolutely possess as demonstrated by their past actions.

I do still believe that any Arbitrator (and if it were to reach that level, any court of law) would find that content uploaded prior to the date when the user agreed to the new ToS must be exempt from the Rights claimed by the new ToS. Given the fact that the ToS states clearly that LL cannot be required to delete ALL copies of a specific bit of content then there is no way they can lay claim to rights over that content that exceed those rights in effect at the time its origin source was first uploaded or created.

If the rights claimed in the new ToS were to extend to previously uploaded content then Linden Lab would in effect be forcing users to commit crimes without providing them with any means to avoid the commission of that crime. For example, a clothing maker that purchases a specific texture from Renderosity to use in an item they create for Second Life. Because of the mechanical process required to sell and distribute copies of that item to other users, the full texture as purchased from Renderosity must be uploaded to the Second Life servers. However the Rederosity Terms of Use in effect for textures purchased from them prohibits the texture being resold or sublicensed to others.

This puts the user in an impossible paradox. They cannot remove all copies of the Renderosity texture from the SL servers, yet they are in violation of Renderosity's ToU by leaving that texture in Linden Lab's possession. They acted completely within the requirements of Renderosity's ToU at the time they uploaded the texture, and they have done nothing since. Yet Linden Lab's actions have caused them to now be in violation .. and further prevented them from remedying the violation.

Owing to the good reputation of the AAA (as you and many others attest), I cannot imagine an Arbitrator looking at this situation and concluding that content uploaded or created prior to the new ToS should be included. Granted, it will require one (or more) cases brought to arbitration in order to set a legally defensible precedent. But the very nature of this untenable legal predicament is so blatant that I just cannot imagine it being successfully argued that prior content should be included.

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"They cannot remove all copies of the Renderosity texture from the SL servers, yet they are in violation of Renderosity's ToU by leaving that texture in Linden Lab's possession."

Hmm. I suspect the argument might be that they did not have to agree to the ToS. By not doing so (and incidentally thereby relinquishing all access to SL), they would not be granting LL the license requested in the new ToS in respect of the problematic content. Neither would anyone else. So LL would not have been granted that license and any use they made that required it would clearly be their violation, not that of the user. On the other hand, if the user does agree to the ToS, then he is both affirming he has the right to grant the license, and granting it. The user has the choice, agree, and thus violate the Renbderosity license, or do not agree (and leave SL). That violation is therefore voluntary. It can easily be avoided by not agreeing to the ToS.

I am not saying I agree with that argument, only that it can be advanced. Whether the choice given is reasonable is, of course, a completely different question.

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 You have every right to your own EULA for your content, provided it does not conflict with SL ToS. LL still claims DMCA protection and has published procedures for you to follow for making a claim against violations. In the end, disputes between users will stay between users - LL involvement will be limited to what they see DMCA protection requires of them; nothing more. I agree that this has always been the case.

 

 

If content piracy and protection is your area of expertise, then you should know that losing DMCA protection would be the single most damaging action that could befall an online service provider that accepts user content in such large scale quantities. The alternative, having to defend themselves against each accusation of infringement, is something that no provider could take on and expect to stay in business for very long. This inability however, is not by itself the determining factor for being eligible for protection. I would be curious to see the outcome of court challenges in this nature, because
the distinction between being the service provider and the actual infringer is being eroded by their own choosing
.

When uploaded pirated content is known to happen at the levels it does in  Second Life, and by anonymous users, attempting to fall back on blaming the user instead of 'us' as the infringer probably won't survive the first court challenge (in this case of claiming  far-reaching rights). Sure, the uploader is guilty, but so are you. Now you are trying to repeat the failed arguments that brought down file-sharing services, with the addition of owning the content also. Turning a blind eye toward known illegal activity will only bite you in the ass in the end.

I believe the most complications will involve 3rd parties. Texture providers have and always have had their own terms. They normally would have no reason to monitor SL TOS, or any other company's TOS, nor do they have to know of these companies' existence. LL has no authority to decide what rights they have. The only reason they may have needed to comment on usage in SL after this TOS change is because they had already published specific guidelines allowing usage in SL; they basically had to retract the permissions they had previously given their users in writing.

I don't think LL has any intention of directly profitting from user content to the extent the ToS seems to now allow; I don't think they would make it to first base in an attempt to fall behind DMCA protection if they did. The real question I have is whether or not the ToS wording alone is enough to endanger that protection.

Bolded is mine.  I believe this is the root of the issue all creators now face when deciding to a) Agree or Disagree to the new TOS; and b) upload or create any content on the SL platform.

LL told us to create you world world imagination, fast forward 10 years and suddenly, without warning SL becomes; your world, our content.

I do believe LL forgot they are a service provider.  I find it wrong for LL to claim they are the agent, and the contract negotiator.  This is not in anyones interest but LL. 

Agent (LL) to creator (Content provider/You):  I am going to market you big time!

Seller (LL) to Agent (LL):  I am not giving your client 1% off any future earnings,  matter of fact they can pay for uploads, tier, land costs, and premium accounts.  As well as extra fees if they want to buy or sell L$.

Agent (LL) to Client (Content provider/You)  Sorry I couldn't get you even 1% of any future earnings from your content you provided to LL.  More so you must pay the following fees if you wish to continue to give us your content; uploads, tier, land costs, and premium account fees.  As well as extra fees if you want to buy or sell L$.

Client/Content Provider:  Sign me up???

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Thank you for that clarity Darius.

At the root of this comes the money. When the cost of enforcement is outweighed by the cost of loss from no enforcement, then we will see them enforce these rights but face it, most of what we see in loss from Piracy etc in SL is pretty small by comparison to the cost of enforcement. Smalls claims court might be able to rectify these if you know the person out of SL and have a real contract but that would be extremely rare so here we are, asking LL to spend limitless money on our behalf which as we all know, just aint gonna happen.

Personally, I don't see them enforcing the DMCA as it applies to in world content between in world creator but rather, will be using it as the enforcement rule for infringements coming from outside companies.  An example would be Disney or Marvel content in world and they submit a DMCA removal request.  Again, cost of enforcement VS the cost of loss from no enforcement. Cost of no enforcement from a Marvel or Disney could be a serious law suit.

I really don't see them enforcing the DMCA for content that they already technically own at anything near the level we have seen in the past.  As their TOS says, they have the option to enforce these rights.

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LL has always had the right to remove any illegal content from SL  I don't think anyone would disagree that it is in LL best interest to remove illegal content. All the recent changes to the tos and contributor agreements is now a red flag imo.  Not exactly sure what they are up to but my question remains;  "Why is it necessary for LL to own it all".

I personally am thinking this is connected to HighFidelity.io.  As I understand it its SL in a cloud, my sim runs on your machine your sim runs on someone else's and so forth.  To allow all content to move within that cloud, I believe they would have to have some control over it. 

Orrrr SL is just a socialism experiment lol.  I don't know but LL presentation of the changes so far,  stinks to high heavens, and is just causing distrust between themselves and us the customer base.

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