How 'binding' are user-made ToS/licenses

[Orwar]

   So I was demoing some stuff, and hadn't paid attention to that one of the things was a demo of a full-perm on the marketplace. But they sent a notecard with the 'license' for the full product. Can't make it a store gift, can't give copies to friends, minimum price must be L$X, minimum price must be L$Y (the MP listing and notecard had two different values when I had a closer look), can't use their 'image' (unsure of whether they mean the advert or the textures though, or perhaps their style?), etc. 

   I'm just curious whether any of it has any actual legal validity, especially since at no point do you actually sign anything. Isn't the whole thing with why so many 3D artists staying away from SL how LL technically take ownership of your item when uploading it to their grid, and if so can you still try to police how the item is being used when having released it to the market? Are we expected to read through the whole description and documentation of every purchase we make because people can sneak in 'licenses' into products (i.e a hair maker going 'you can't publish pictures with this hair unless your avi is really pretty, if you do we'll take legal actions for misrepresenting our brand' or such silliness)? 

   Obviously some of the terms make sense, if someone released a full-perm for L$1000 and you immediately bought it and re-sold it full-perm for L$999 you'd be in direct competition with the maker, which if allowed would pretty much threaten to kill the whole full-perm market because people would just stop selling full-perm assets. But things like 'can't give it to a friend', well, if I sell it to them for L$X and then gift them L$X back that's basically circumventing that - same with handing out copies to alts; if I set up a vendor and sent the money for an alt to buy it from myself then I haven't really departed with any money for a copy of the product. And what about bloggers? If you have a brand and re-sell products you've bought full-perm and re-textured and have bloggers, would giving it to them to advertise with count as a gift?

   It's a bit like 'this door can only be re-sold as either copy OR transfer, and only as part of a build' - if I link it to a root prim to make me the apparent creator at a glance, did I make a 'build'?

   So, are these 'licenses' or 'terms of service' that pop up in product descriptions or notecards in any way binding? Do LL somehow enforce them? Do people get punished in any way for not adhering to them?

   And I guess, due to the nature of the topic, it may be worthwhile putting in a little disclaimer: I have no intention to breach any of these 'contracts', nor do I suggest others should. I'm merely curious about how things work.

[Love Zhaoying]

It's an interesting question to me because:

a) On the one hand, I would usually understand most "user" licenses to be worthless with the caveat that if someone "gets sued", one of the two parties involved in the suit can always point to the license.

b) On the other hand, as a professional programmer I am supposed to trust "Open Source Licenses".

 

[Silent Mistwalker]

One thing I know for sure is I won't buy it if there [are] dictator conditions like price limits.

Quote

Until recently, courts treated minimum resale price policies differently from those setting maximum resale prices. But in 2007, the Supreme Court determined that all manufacturer-imposed vertical price programs should be evaluated using a rule of reason approach. According to the Court, "Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate." Note that this change is in federal standards; some state antitrust laws and international authorities view minimum price rules as illegal, per se.

Quote

Q: One of my suppliers marks its products with a Manufacturer Suggested Retail Price (MSRP). Do I have to charge this price?

A: The key word is "suggested." A dealer is free to set the retail price of the products it sells. A dealer can set the price at the MSRP or at a different price, as long as the dealer comes to that decision on its own. However, the manufacturer can decide not to use distributors that do not adhere to its MSRP.

Q: I am a manufacturer and I occasionally get complaints from dealers about the retail prices that other dealers are charging for my products. What should I tell them?

A: Competitors at each level of the supply chain must set prices independently. That means manufacturers cannot agree on wholesale prices, and dealers cannot agree on retail prices. However, a manufacturer can listen to its dealers and take action on its own in response to what it learns from them.

Many private antitrust cases have involved a manufacturer cutting off a discounting dealer. Often there is evidence that the manufacturer received complaints from competing dealers before terminating the discounter. This evidence alone is not enough to show a violation; the manufacturer is entitled to try to keep its dealers happy with their affiliation. Legal issues may arise if it appears that the dealers have agreed to threaten a boycott or collectively pressure the manufacturer to take action.

Q: I would like to carry the products of a certain manufacturer, but the company already has a franchised dealer in my area. Isn't this a restriction on competition?

A: Under federal antitrust law, a manufacturer may decide how many distributors it will have and who they will be. From a competition viewpoint, a manufacturer may decide that it will use only franchised dealers with exclusive territories to compete more successfully with other manufacturers. Or it may decide that it will use different dealers to target specific customer groups

https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-supply-chain/manufacturer-imposed-requirements

 

Edited March 13 by Silent Mistwalker

[Flea Yatsenko]

It's all a mess. I stopped selling full perm for the most part. Even if someone violates the ToS you have a really hard time finding out if they are violating it. Let alone enforcing it. I think it's really just trust, merchants trust customers to follow the ToS and customers respect it so full perm doesn't go away. But it always seems like whenever I release a FP version eventually the product just stops selling and most of my products don't. I would be surprised if most people followed user ToS, let alone read them.

[Modulated]

I am going to get some flak for this but here goes: If something is full perm, and you sell it as such, with a license or user agreement or what have you, there's nothing you can do to stop the person who gets it from doing whatever they want with it, and I agree with that. If you don't want them doing whatever with it, set some perms on it, end of.

Edited March 13 by Modulated

[Paul Hexem]

As previously noted, minimum/maximum price requirements can be ignored.

The rest is probably on the level.

[Jennifer Boyle]

There is one case in which those TOSs clearly are invalid: when they are not made available to the buyer until after the sale.

[JUSTUS Palianta]

They make those rules so they can DMCA the product you make from the full perm item, by either selling it too cheap or selling it with the wrong permissions.  And yes linden always listens to DMCA's in my experience.  

Can't use their image means you can't use the vendor image the creator used to sell the full perm item to sell your non full perm item you create from the kit.  You have to make your own image to sell the product you have created from improving their product.

I find it ridiculous that template makers would give you full perm textures then won't let you use them, there is one template maker that is super famous for DMCA people who use the textures she sold them.  🤷‍♀️  I believe the creator made this stupid rule because they don't actually own the mesh models or the textures they are selling full perm and have purchased them from 3D Mesh Model Sites then rigged them for SL bodies.  Often the rigging is low quality too.  

The giving the full perm item to alts generally refers to giving full perm things you purchased to your alt to create things for your alts shop then selling it.  

The main point for removal or enforcement of the full perm object creators TO's is when they are selling the item in a store or on the marketplace.  It's not very often people DMCA your inventory unless you are profiting from there creation.  You often find copy bots (or unreputable sellers) sell from there inventory to yours for this reason and have no stores.

You don't actually tell linden your TO's on the DMCA fax, but you state you own the copyright.  All creators hold the copyright on there original creations.  If the creation is prim, mesh or an image etc.  ❤️

The next point after that is contesting the DMCA and linden will give you the contact details of the person who DMCA you so you can get RL lawyers and go to RL court if you want to pursue the matter.  At which point it is my understanding the court will ask you to prove that you created the item by showing your work flow.

Edited March 14 by JUSTUS Palianta
I edited this 100x. Hope it helps.

[elleevelyn]

19 hours ago, Love Zhaoying said:

b) On the other hand, as a professional programmer I am supposed to trust "Open Source Licenses".

 

just on this. When we use Other People license (closed or open source) is still incumbent on us to do our own legal due diligence when we include a licensed work in our own work

for example, just because I include a Public Domain notice in a script I might post to the Scripting Library it means that the Public Domain notice applies only to the script as a whole body of work. My Public Domain notice doesn't mean that I am necessarily the legal owner of all methods that may be included in the posted work. Methods can be encumbered by patents and/or user licenses that can come back and bite us when we not careful

13 hours ago, Paul Hexem said:

As previously noted, minimum/maximum price requirements can be ignored.

The rest is probably on the level.

pretty much yes to both points generally

in most countries we can't dictate on-sell prices unless the product is part of a franchise agreement

and in most countries we can encumber a user license with pretty much anything we want (Linden Terms of Service for example), provided that we also provide a legal dispute remedy.  Is not enough to just say to the customer that the legal remedy is DMCA. We typically have to do more than this

not making a User License available before purchase, is usually legally actionable as a dispute. In this case we could petition Linden to make us whole. Get our money back and remove the product from our inventory. If Linden doesn't do this then we can use the Linden Dispute Arbitration process. https://wiki.secondlife.com/wiki/Linden_Lab_Official:Terms_of_Service_Arbitration_FAQ   basically in the do-nothing case we sue Linden for enabling this to happen on their site

however, from what Orwar says the seller has addressed this issue by providing a Demo Product accompanied by a User License. My assumption is that the demo is not the Full Product which the user can buy after reading the User License

19 hours ago, Orwar said:

   So I was demoing some stuff, and hadn't paid attention to that one of the things was a demo of a full-perm on the marketplace. But they sent a notecard with the 'license' for the full product. Can't make it a store gift, can't give copies to friends, minimum price must be L$X, minimum price must be L$Y (the MP listing and notecard had two different values when I had a closer look), can't use their 'image' (unsure of whether they mean the advert or the textures though, or perhaps their style?), etc. 

   I'm just curious whether any of it has any actual legal validity, especially since at no point do you actually sign anything.

 

we received the User License before we purchased the Full Product. Typically in this case the act of purchase after receiving the User License would be seen as agreeing/signing in most jurisdictions

[Sid Nagy]

I think that these TOS notes could only have value in a RL court. But who has the time and money to go to court over some micro payments.
Drag someone from for instance Germany to an American court over a purchase of 1.45 USD in full perm stuff?  Yeah right.

LL will not act as we all know when it is a resident to resident dispute.

Everybody who is a serious creator and uses stuff from others in their creations at times knows that setting the right permission combination is a must.
It is the way one protects their own products so you treat the parts that others made in the same way.

The rest of these TOS notes are IMHO only self importance™ that we all know from all over Second Life.

I've sold full perm doors and windows for several years in SL. They sold really well to starting builders and they kept selling until the prim era ended. The market was never flooded with my stuff in freebie boxes.
So, my conclusion: Most people who buy full perm items use their common sense.

Edited March 14 by Sid Nagy