Can a creator limit what you do with a transferable object (like prevent you from selling it)?

[Crampy]

There's a vendor (I won't say who) with a random chair that gives away collectible objects, with permissions that are transferable.

I played it on and off for several days until I had a complete set, and of course was left a bunch of duplicates I didn't need. I figured I would sell those for a little amount ($L50) to make up for the time I spent. Luckily I discovered the notecard that comes with it before I did that:

Quote

You can trade these ____ or gift them, but you can not sell them!
IF so DMCA will be filed!

You can trade your _____ for a modify/copy one, send a folder renamed to your avatar;s name
with your _____ and I will replace them.

 

Ok I won't be selling them for sure.

I understand that if I did, I would be selling something someone else made (although that's ok with Gachas), and something I got for free (although I did spend time)... Something about that threat bothers me. I thought that the original spirit of Linden Lab's permission system was to prevent people from restricting what you could do with an object if it was transferable. 

Can a creator make such a threat?

 

[Mollymews]

the notice is a use license. Is not a threat

any use of the copyrighted material outside the scope of the use license (selling the item for example) constitutes copyright infringement

 

[Chic Aeon]

19 minutes ago, Crampy said:

Ok I won't be selling them for sure.

I understand that if I did, I would be selling something someone else made (although that's ok with Gachas), and something I got for free (although I did spend time)... Something about that threat bothers me. I thought that the original spirit of Linden Lab's permission system was to prevent people from restricting what you could do with an object if it was transferable. 

Can a creator make such a threat?

 

Well of course he can threaten but I am not sure how this falls under a DMCA act.  Maybe someone else will see what "I" am not seeing.   This is more of an End User License Agreement type of thing typically for full-perm items. 

I think you have a right to think that something is a bit fishy. The creator certainly has a right to  have an EULA for his or her items BUT as has been discussed on these forums a few times -- that agreement SHOULD HAVE BEEN REVEALED before you spent all your time getting the items. 

 

Since LL doesn't interfere with person to person arguments and such you could likely sell them with no issues. BUT that being said I think that the best course would just be to gift them to folks and then avoid that creator in the future. You can of course warm people privately -- just not in the forums :D.  (at least I think that is true :D. It is done ALL the time and I haven't heard of anyone getting in trouble as long as it is PRIVATE.)

 

Others may have different points of view. That's just mine. 

Edited February 10, 2020 by Chic Aeon
adding info

[Rya Nitely]

39 minutes ago, Crampy said:

I thought that the original spirit of Linden Lab's permission system was to prevent people from restricting what you could do with an object if it was transferable. 

Consider the full perm market, which is a huge business on MP and inworld. Without these restrictions anyone could buy these full perm items and then sell them as is at a lower price, hence competing with the full perm seller. It is important that the restrictions are clear in the description, however most people in SL would be aware that full perm items come with restrictions. Otherwise, the full perm seller could potentially be just selling their entire business over and over again, with people selling with a race to the bottom. Finally the full perm seller would have to just give up. That's not a very good business model at all.

The DMCA notices do help here, and thank goodness because without them there would be no full perm sellers on the market, except perhaps the very generous who don't care how things turn out. The full perm market is a very useful resource for builders, and one not many people would want to do without, I'm sure.

So, here is an example of how very important the EULA is, and the consequences of not having it and the DMCA.

[Mollymews]

34 minutes ago, Chic Aeon said:

 I am not sure how this falls under a DMCA act.  Maybe someone else will see what "I" am not seeing.   This is more of an End User License Agreement type of thing typically for full-perm items.

breaches of a copyright use license can be remedied by the DMCA process

as you mention, the OP circumstance is no different say, from me buying a builder's CT texture pack and then trying to sell the textures, as textures, when the texture creator has specifically forbidden this

if I were to list these textures for sale on Marketplace for example, then the texture creator would be successful in having Linden take down these copyright infringing items

a EULA does fall under DMCA when the items are copyrighted

 

[Rya Nitely]

yes and Molly agrees

 

[Mollymews]

what Rya said

 

[Chic Aeon]

1 hour ago, Mollymews said:

breaches of a copyright use license can be remedied by the DMCA process

as you mention, the OP circumstance is no different say, from me buying a builder's CT texture pack and then trying to sell the textures, as textures, when the texture creator has specifically forbidden this

if I were to list these textures for sale on Marketplace for example, then the texture creator would be successful in having Linden take down these copyright infringing items

a EULA does fall under DMCA when the items are copyrighted

 

OK. I do see a lot of that going on on the Marketplace and nothing being done about it however.  "I" certainly wouldn't try to sell the item. I still think that the creator is being pretty shifty. There are quite a few full perm creators (or used to be anyway) that didn't let their buyers know the EULA BEFORE THE PURCHASED. Nothing on the Marketplace and nothing out in their store. Only a notecard WITH the product.  That is not good business practice in my book. 

This sound very close to that practice even though no money was involved.  I certainly wouldn't knowingly buy from the creator. 

 

Here is the new DMCA form should someone want to investigate further and see what THEY think

https://dmca.lindenlab.com/

 

ADDING: 

 

For those that do not know the DMCA process requires RL information as well as other information. It is a costly process.  There is plenty of information on the web. 

 

Edited February 10, 2020 by Chic Aeon
adding info

[Mollymews]

59 minutes ago, Chic Aeon said:

There are quite a few full perm creators (or used to be anyway) that didn't let their buyers know the EULA BEFORE THE PURCHASED. Nothing on the Marketplace and nothing out in their store. Only a notecard WITH the product.  That is not good business practice in my book.

agree that some merchants could do better in this area

from what the OP describes it seems to me that they have been playing a free-to-play gacha.  The merchant could save themselves from the kinda hassles raised by OP, by putting no-transfer items in the free-to-play gacha machine

 

[Alyona Su]

End User License Agreement is not a "DMCA Notice". A "DMCA Notice" is a demand to cease and desist. It is a reactive thing, not a proactive thing. As for the selling of transferable items, it's the holder's call whether to do it or not (in the real world in the United States there is a part of the law called "First Sale Doctrine" - which says that once you buy it, you can do anything you want to it, except redistribute it unless it is *used*.

With regard to software licensing, at least, this question was answered by the U.S. Supreme Court, which stated that First Sale doctrine applies only to the original buyer and does not include a right to redistribute (in the case of software code) because it is not considered "used"; Software is synthetic code, for lack of a better description, and when copied, it's "new" again.

All of this being a simplified explanation, of course.

So in the case of what the OP is asking, they could resell their transferable prize if they want. The chances are high that nothing will come of it. However, there is always the risk that the creator could file a DMCA Notice, where Linden Lab will be forced to take it down.

So the question comes to this: If it is taken down by a creators DMCA Notice, and the seller files a counter-claim, is that enforceable? Theory states yes: the seller has the right to resell the item because it is not an intellectual rights question, it is a question of "method of authorized redistibution". If the creator allows the transfer of said item, then the holder is given the right to transfer. There is no stipulation in TOS or otherwise with regard to the *method" of transfer, so long as the system supports it.

So my best guess on the subject is: Yes, you can sell your transferrable items on Marketplace or in-world by right. However, it could open a large can of headache-inducing drama. That is the true risk.

Edited February 11, 2020 by Alyona Su

[Mollymews]

17 minutes ago, Alyona Su said:

So the question comes to this: If it is taken down by a creators DMCA Notice, and the seller files a counter-claim, is that enforceable? Theory states yes: the seller has the right to resell the item because it is not an intellectual rights question, it is a question of "method of authorized redistibution". If the creator allows the transfer of said item, then the holder is given the right to transfer. There is no stipulation in TOS or otherwise with regard to the *method" of transfer, so long as the system supports it.

i think that this is also covered in TOS Section 2.7, first paragraph

paraphrasing: We can't publish or submit to any part of the Service any content that is protected/subjected to proprietary rights unless we have permission from the rightful owner

publish could mean a listing on the Marketplace

submit to any part of the Service could also mean the Marketplace, or sticking it in a inworld vendor box, or transferring it to another account

i think the academic question is: Does setting the Transfer permission give owner permission ?  In the normal course, in the absence of a EULA then yes

In the case of a EULA that puts conditions on the transfer, the EULA would be the permission I think, and not the T tick box setting

[Alyona Su]

11 hours ago, Mollymews said:

i think that this is also covered in TOS Section 2.7, first paragraph

paraphrasing: We can't publish or submit to any part of the Service any content that is protected/subjected to proprietary rights unless we have permission from the rightful owner

publish could mean a listing on the Marketplace

submit to any part of the Service could also mean the Marketplace, or sticking it in a inworld vendor box, or transferring it to another account

i think the academic question is: Does setting the Transfer permission give owner permission ?  In the normal course, in the absence of a EULA then yes

In the case of a EULA that puts conditions on the transfer, the EULA would be the permission I think, and not the T tick box setting

If the item is transferrable, then... [highlight above is mine] - this is why it is an ambiguous scenario. And based even on the TOS, the right to resell leans toward a "yes".

Though, et's also look directly at the elephant in the room: the creator doesn't;t want people to sell it; they want people to come to their region to get it so they can generate traffic. As though traffic actually means anything like it used to.

[Mollymews]

10 hours ago, Alyona Su said:

If the item is transferrable, then... [highlight above is mine] - this is why it is an ambiguous scenario. And based even on the TOS, the right to resell leans toward a "yes".

Though, et's also look directly at the elephant in the room: the creator doesn't;t want people to sell it; they want people to come to their region to get it so they can generate traffic. As though traffic actually means anything like it used to.

on the first. In ambiguous situations I have a tendency in the first instance to favour the creator.  This said, when reading a text I can sometimes misunderstand the writer's intent

on the second. Yes it could be that like Lucky Chairs a purpose is to reward people who come to the parcel/region and spend time there.  Like i mention before, what OP has experienced is I think a convoluted way for the creator to do this, which creates an unnecessary issue for themselves and for OP

it may be also, that the creator doesn't know that they can put No-Transfer items in  a gacha machine, and have ended up in this situation thru lack of knowledge/understanding

i find that overall, the lack of knowledge is more the reason why people end up doing stuff in the way they do.  They just don't know that there can be better ways sometimes. And sometimes further, even when a better way is shown to them, they still don't get it immediately and it can take them some time to work it thru

[Alyona Su]

13 hours ago, Mollymews said:

on the first. In ambiguous situations I have a tendency in the first instance to favour the creator.  This said, when reading a text I can sometimes misunderstand the writer's intent

on the second. Yes it could be that like Lucky Chairs a purpose is to reward people who come to the parcel/region and spend time there.  Like i mention before, what OP has experienced is I think a convoluted way for the creator to do this, which creates an unnecessary issue for themselves and for OP

it may be also, that the creator doesn't know that they can put No-Transfer items in  a gacha machine, and have ended up in this situation thru lack of knowledge/understanding

i find that overall, the lack of knowledge is more the reason why people end up doing stuff in the way they do.  They just don't know that there can be better ways sometimes. And sometimes further, even when a better way is shown to them, they still don't get it immediately and it can take them some time to work it thru

If you misunderstand the writer's intent the cause is one of two things: It's not written well or you are not reading it well. (This happens to all of us all the time). Word and reading of them should be literally, especially in a case such as the OP's subject.

As for the subject proper: If there creator does not want anyone to resell their creations there is one and only one method to prevent that: No-transfer permissions.

Edited February 12, 2020 by Alyona Su

[Codex Alpha]

I thought that if I made my items transferable that they COULD be resold, and thought it was a strange model if I did. After all, I'd make the initial sale on the item, but then get nothing on subsequent sales of it - so thought it was completely pointless to do so. One could sell the initial item as $100, and if it became a rare or sought after item, could be resold indefinitely for many, many more Lindens.

I guess it would be okay for unfinished or untextured items or 'parts', but shouldn't there be a clause that states by default "No you can't just resell the parts in their raw form, but only as part of a project/product"? Wouldn't it be fair to default to "Don't sell my textures in their raw form, but only as part of your house/project" as a default agreement on all transferable items?
Or at least some kind of checkbox for further permissions - [x] Can be sold as a competing product vs original author  [   ] Can only be used as part of a project

On pretty much all asset sites from CG Trader to Turboquid, to GameTextures.com, the basic understanding is that you can use the 'transferable' raw items, but only as part of something else... and not just uploading the 'raw form', eg. Ground_Mars_Rock_Albedo,etc up to another site as resale.

In Sansar, though not sure if it's working or fleshed out, the plan was to allow people to resell things, but the original author can set a base price. The idea being that someone could create a car from different parts... my tires with author2's body and frame, etc and create new products from parts (and add scripting, etc). Interesting model not sure how it would work exactly...

 

[Tari Landar]

While there may not be a "legal"(I'm using that in as loose of meaning possible, really) reason not to sell items you received for free, some people may have a moral/ethical dilemma with such. That's most likely where a lot of commentary you'll receive on the matter stems from.

ME, personally, I wouldn't sit there, for hours by your own admission, just to get free things with the intent to sell them. For me, and me alone, that would be an unethical (again by my own definition for me and myself and I alone) thing to do, and would make me feel very uneasy, regardless of how much of my own time I willingly volunteered to the venture. Giving items away that I don't need, whether or not the creator had put that caveat in, I might struggle with too (for reasons that mean nothing to anyone except me, lol), but at least if I did, it wouldn't be to profit. I have actually in the past asked creators if they're okay with this. Some laugh at me when I ask, but it's a thing for me so...lol. No one's ever had an issue with it, though I've had some say "just please don't sell it", and i can't see any reason to go against what I find to be a very reasonable request. It's not like I'm depending on those few pennies I might've gotten to feed my rl children....

I wouldn't think that creator shady for making such a request (in a EULA or not). I would, in fact, consider someone who intentionally gets something for free, to then sell it for profit, to be a bit closer to the shady side of things (again, personal compasses playing a large role in that, as judgmental as it sounds). That doesn't make me, you, or anyone else right, wrong, or indifferent, though, lol.

Clear as mud isn't it?

Creators that offer items with transfer perms are well aware that others may sell those items, even if they're not comfortable with them doing so, they're not stupid and they realize you can. Some probably don't care, some might care a great deal but also realize that at some point you may find someone who has better use for that item so they opt for setting those perms because it's a common practice and they'd rather see their wares get used and not stuffed into an inventory for ages (or thrown away), so they find themselves in their own little pickle, as it were. 

At any rate if the question is "does a creator actually have recourse should I go against their EULA?" the answer is both yes, and no, it's situationally dependent, entirely. 

I think the question most people would ask, however is "should people go against a creator's EULA/request, just because they can"-and that's a personal question only individuals can answer. 

[Mollymews]

6 hours ago, entity0x said:

I guess it would be okay for unfinished or untextured items or 'parts', but shouldn't there be a clause that states by default "No you can't just resell the parts in their raw form, but only as part of a project/product"? Wouldn't it be fair to default to "Don't sell my textures in their raw form, but only as part of your house/project" as a default agreement on all transferable items?
Or at least some kind of checkbox for further permissions - [x] Can be sold as a competing product vs original author  [   ] Can only be used as part of a project

adding to this conversation

i have wondered at times how an extension to CMT might be done

a way could be NEXT_NEXT_OWNER_PERMISSIONS as the extension to existing NEXT_OWNER_PERMISSIONS

NEXT_OWNER being the person I give my asset to. NEXT_NEXT_OWNER  being the person(s) who they give the asset to

i set the asset to: NEXT_OWNER : Copy, Modify, Transfer

and set NEXT_NEXT_OWNER to Copy, Modify, No-Transfer

when the NEXT_OWNER (my customer) gets the asset then the only permission they can change for further distribution to their customers is Modify to No-Modify.  They can't change Copy/No-Transfer to No-Copy/Transfer

i can also set the asset to: NEXT_NEXT_OWNER : No-Copy, Modify, Transfer. And the same applies. Can't change No-Copy/Transfer to Copy/No-Transfer

with this then as a asset maker I could give my builder customers 2 copies of my asset.  Both set to NEXT_OWNER : Copy, Modify, Transfer.  Asset 1 to NEXT_NEXT_OWNER : Copy, Modify, No-Transfer.  Asset 2 to NEXT_NEXT_OWNER : No-Copy, Modify, Transfer

Use asset 2 in gacha-like products. Asset 1 in other types

by default if we don't set NEXT_NEXT_OWNER ourselves then NEXT_NEXT_OWNER will be the same as NEXT_OWNER