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Resident to resident EULAs


Paul Hexem
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I saw a question asked recently that made me wonder something.

You often see full perm objects for sale, usually builder packs of sculpts or textures or what have you, and they always inevitably have some mini-agreement attached to them, like telling you what perms you're supposed to set your objects to if you use their builder pack.

Then I remember the fact that LL doesn't enforce, recognize, or get involved with agreements between residents. They call issues "resident to resident disputes" and won't do anything, unless it actually violates one of their rules.

Doesn't that mean that if I did buy something full perm and then resell it with whatever perms I want (usually the perms in the mini-eula match up to what I'd set anyway, so it's a rhetorical question), there's not a whole lot the first creator could do?

You haven't circumvented the permissions system, and since they sold you the item full perm, a DMCA wouldn't really apply, either, I think?

To me, it feels more like an honor system than an enforcable agreement (unless you read it the way some creators write their little eulas...).
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That's what I thought. I've read a few posted in-world an in notecards with builder packs I've purchased, and some threaten to AR you or DMCA you, or force you to register in their system before you can use the product, silliness like that. I gotta wonder if these people realize that it really is just an honor system and all the angry lists of rules in the world won't work as well as a polite request...

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The first creator is the IP right owner, and when he sells his merchandise with an eula, and you are restricted by law to stick to the rules of the eula. Because the right of the IP owner to set limits to redistribution of his creation weights heavier then the SL permission system.

I have had a case with someone selling one of my full perms in a full perms creation. I have filed a dmca for that and LL deleted the creation from this person from the grid and from his inventory. So it is not just a matter of honor. Not for the creator, and not for Linden Lab.

But there are some angles in this field of eulas. For example, it is important for a merchant to make the eula known to the user before he purchases the item. When he only finds out after buying the there is a restriction for redistribution on the item, you have sold the item with misleading permissions.That can bring you in troubles when it comes to defending your rights.

Another point what a lot of full perms sellers forget is that a license agreement only is an agreement when both parties agree. In the system I use myself for the distribution of my Photoshop files, the user can only download the file when he agrees to my users license. When he refuses to click the 'I agree' button the download option just won't open.

 

 

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Madeliefste Oh wrote:

The first creator is the IP right owner, and when he sells his merchandise with an eula, and you are restricted by law to stick to the rules of the eula. Because the right of the IP owner to set limits to redistribution of his creation weights heavier then the SL permission system.

I have had a case with someone selling one of my full perms in a full perms creation. I have filed a dmca for that and LL deleted the creation from this person from the grid and from his inventory. So it is not just a matter of honor. Not for the creator, and not for Linden Lab.

But there are some angles in this field of eulas. For example, it is important for a merchant to make the eula known to the user before he purchases the item. When he only finds out after buying the there is a restriction for redistribution on the item, you have sold the item with misleading permissions.That can bring you in troubles when it comes to defending your rights.

Another point what a lot of full perms sellers forget is that a license agreement only is an agreement when both parties agree. In the system I use myself for the distribution of my Photoshop files, the user can only download the file when he agrees to my users license. When he refuses to click the 'I agree' button the download option just won't open.

 

 

That's interesting that they would do that, since the person didn't violate the permissions system, and technically it was a resident to resident dispute.

Any time anyone has a problem with products being defective, unsupported, broken, or other customer complaints, it's a resident/resident dispute and they don't get involved, but if a merchant doesn't like how you're using the full perm item you purchased, then LL gets involved to correct the issue, and it's not a resident/resident dispute anymore? To me, that seems like something they could get into a lot of trouble for, although admittedly I'm not entirely up to date on all of my consumer rights/laws.

 

Although your second point is a really good one (ignoring my first paragraph). If the EULA is in the package you buy on the Marketplace for example, and not on the marketplace page, it's not valid? Similarly, simply having a sign up in the store wouldn't apply, either? Interesting.

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The person didn't violate the permissions system, but he did violate my copyrights. When it is about copyright infringments it is not a resident to resident dispute. As the legit IP right holder I can file a dmca and LL has to react on that.
LL recognises my IP rights and the restrictions I put on the use of my creations, even when they are only stated in a notecard.

But now after LL has taken the item down that violates my right, the violator still has the possibility to file a counter dmca. He can only do so by claiming that I am not the copyright holder but he. I don't know how deep LL looks into the issue when a counter dmca is filed. But as soon as a counter dmca is send tehcnically they can take their hands of the issue.When you file a counter dmca you have to swear, under penalty of perjury that you are the IP right owner.
And you both have to solve the issue in RL. At this point you might need a lawyer to get your rights as creator. 

It is at this point that it weakens his case when the IP right holder did not do enough to make clear to the buyer that the item comes with an eula and reveal the terms of use before purchase is made.

I don't know if a sign a shop that reveals the terms of use is enough. As far as I know there have not been any cases like these brought to court, so there is no case law.

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I think you'd also have trouble in an RL court with it though. You might have a tough time convincing a judge he violated your copyright, when you yourself sold it to him with full permissions... But that's more because laws haven't caught up with SL than him actually being right.

 

Either way, it just goes to show that LL's permission system is woefully not up to the task, when people have to make up their own (arguably) unenforcable EULAs.

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You can take EuLA viotation to court in RL, but LL is not a court and they can choose to deal with it or not. They may have changed their minds, but in the past they allowed someone to sell other ppl's full perm sculpts on the MP, because he did not claim to be the creator.

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Pam, it is up to a IP right holder to decide how his creations can be used. Eula is about the conditions that come with the item. You can define you conditions as you like, as IP right holder. You could for example state in your eula that buyers can use your clothing templates to make clothes in all colors except red. Or you could state that the buyer may just make 100 copies of the sculpty you have made.

I know this are ridiculous examples, but it is possible. Now when we take the example of the clothing template. When the IP right holder of this template finds out that one of his clients still has made a red outfit he can file a dmca. Because this is a voilation of his copyright, just because he has forbidden to make red clothes based on his creation.

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Actually, there is no vehicle for EULA enforcement in any of these scenarios as their is no way to validate acceptance of that agreement. A note card does not qualify as acceptance of an EULA and the term "By Purchasing this you agree to..." cannot be litigated against an anonymous avatar who made this purchase. 

Outside of the pure dynamics of a EULA, SLA or ToS, there are no laws in place such as with the DMCA.  The DMCA is the instrument that allows us to pursue copyright infringes though it is only within the confines of current law and not specific to that instrument as being a contract.  That being said, the DMCA is the protection in and of itself regardless of your EULA. 

The only remedy for such a case would be to litigate with a real identity and then you could only receive compensation for the direct damages it caused.

LL's agreements hold up as you had provided RL information when you accepted that agreement.

Purchasing under such an agreement is only enforceable if  you have made the agreement under a real identity and if the owner of said rights has proof that you read and accepted this agreement. After that, only the DMCA is enforceable.

 

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Pamela Galli wrote:

They may have changed their minds, but in the past they allowed someone to sell other ppl's full perm sculpts on the MP, because he did not claim to be the creator.

Yes. But LL cannot smell who is the original creator is, as long as the original creator doesn't want to claim his rights. I don't think it is smart from original creators not to claim their rights, and just let the violation go on.

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To become mesh enabled you have to take a tutorial about IP rights. One of the questions is about this subject of additional terms of use. Though the example is not directly about forbidding to resell with full permissions, but about selling an item as is, it still makes clear that LL recognises the additional terms of use a creator puts to is items as valid.

Meshtest.jpg

The answer: 'The permission settings on the mesh objects are "full perms", she can do whatever she likes with them', is the wrong answer.

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What a can of worms. So now they do enforce EULAs, including after-purchase EULA's?

 

Don't get me wrong, I support full perm creators and their rights to have their products protected.

 

That said, a EULA between two residents is between two residents. How come LL will get involved in that and not other resident/resident issues involving in-world/mp sales?

 

Further, let's say I do make that red shirt that I'm not supposed to, because I didn't read or agree to the EULA notecard. Creator then DMCA's me, I counter it because I purchased the templates full perm and as far as the permissions system and TOS are concerned, I'm not violating any rules, and I didn't agree to any EULA prior to purchase. The original creator would then have to decide whether to go to court or not, correct? Or am I stuck fighting LL for my 20 dollars worth of L$ back from purchasing the templates?

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It is not only a eula between two residents.By being a resident of SL you have agreed to the TOS, which states:


7.8 You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties.

You agree that you will not upload, publish, or submit to any part of the Service any Content that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant Linden Lab and users of the Service all of the license rights granted in these Terms of Service.

So when you upload, publish or submit something without the permission of the original creator you are violating the TOS.

You cannot counter a dmca for not agreeing with an EULA. You can only counter a dmca with declaring that the person who claims to be the IP right holder is not the IP right holder, but you are the IP right holder.

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Madeliefste Oh wrote:

It is not only a eula between two residents.By being a resident of SL you have agreed to the TOS, which states:

7.8 You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties.

You agree that you will not upload, publish, or submit to any part of the Service any Content that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant Linden Lab and users of the Service all of the license rights granted in these Terms of Service.

So when you upload, publish or submit something without the permission of the original creator you are violating the TOS.

You cannot counter a dmca for not agreeing with an EULA. You can only counter a dmca with declaring that the person who claims to be the IP right holder is not the IP right holder, but you are the IP right holder.

As soon as I sell you my objects full perm, I just sold you the rights to use them, though. That doesn't apply anymore. If you use that argument and say that you're not allowed to counter a DMCA, anyone can just say "Wow, that guy's really successful with my stuff. DMCA time!" and shut a content creator down.

 

Unless you make the argument that you are the IP right holder, since you purchased the IP rights for L$ when I sold them to you.

 

Or am I overlooking something?

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For each item that you sell counts that you sell the buyer the right to use it. Also when you sell an item with limited permissions. Now when you sell your item full perms, and you don't use an eula, users license, users agreement or attach any terms of use, the buyer can use your items according to the LL permission system, and make copies that he can distribute without any restrictions.

When you sell an item full perms with an eula, you sell the buyer the right to use to item according to the eula. When this user sticks to your eula you have no ground to file a dmca. An eula does not only put restrictions on items for the buyer, but also gives him rights. You cannot take back those rights, once you have sold the item.

Sometimes you hear about cases where merchants change their eula. I heard about one from a merchant who sells full perms items and a customer of him resold the items for a low price, but according to his terms of use. He was not happy with that, and then he changed his terms of use and did put a up a minimum price that buyers must ask when they want to resell his item.
Such is possible, but it doesn't work backwards. The eula that is valid on the moment of buy is the eula that the buyer must stick to. So this merchant can only hold his future customers to his new eula, but not the person who sells his items for a price he doesn't like.

Your IP rights are real world rights. When you sell an item in SL, you are not selling your IP rights. You are selling user rights. This counts for all items, restricted or full perms. 

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when you purchase full perm items, what you're actually purchasing is a limited use license. This really isn't anything new, just look at sites like shutterstock, turbosquid, renderosity, dreamstime, etc etc etc. Those sites have licenses for the products they sell, and you're bound by those licenses whether you read them or not. Some have multiple licenses that a creator can choose from, some have mulitple licenses you can purchase at different prices. For example, if I'm using an image in a website, I would need a single use license, but if I'm building a wordpress theme I intend to sell, I need a multi use license (usually more expensive).

 

As to the question. If I sell you an item, and it turns out that item doesn't work or isn't what I advertised, you can only take legal action against me. LL can not be held accountable for my underhanded behavior. If I buy a full perm item from you and violate the terms of the license, in that case LL can be dragged into any legal action you might take. I'm not entirely sure of the "wheres" and "whyfors" behind this, but that's the gist of why LL gets involved with DMCA disputes between residents. 

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Mylar wrote:

As to the question. If I sell you an item, and it turns out that item doesn't work or isn't what I advertised, you can only take legal action against me. LL can not be held accountable for my underhanded behavior. If I buy a full perm item from you and violate the terms of the license, in that case LL can be dragged into any legal action you might take. I'm not entirely sure of the "wheres" and "whyfors" behind this, but that's the gist of why LL gets involved with DMCA disputes between residents. 

That's the interesting part. Why one violation involves LL but not the other.

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I find it hard to explain this in English, but I'll give it a try.
LL is not responsable for the damage you and your neighbour bring to each other when you have a a fight. But LL is responsable to a certain degree for the content on it's servers. LL is by law obligated to take down content that infringes someones copyright. But as long as LL doesn't know that there is an infringement, LL cannot be held responsable for hosting 'illegal' content.
So that some people do sell products that infringes someones copyrights (sometimes copyrights of big compagnies) can be possible because the legal IP right holder never found out about these infringements, or because he did not claim his rights.
Only when the IP rightholder sends in a claim in the light of dmca is LL obligated by law to receive the claim and have it investigated by its copyright agent. LL is also obligated to take the content from the servers when a dmca claim is valid.

The day that a server provider by law will be made responsable to solve the issues that his users have among each other, is the day that LL will intervene in resident to resident conflicts. That day will never arrive.

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as the company that's hosting the content, if LL receives a DMCA notice they are legally required to take action. Otherwise they can be charged as an accessory to what is essentially a crime. For the most part, LL wants to remain neutral in resident to resident disputes, but in this case they can't.

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Mylar wrote:

as the company that's hosting the content, if LL receives a DMCA notice they are legally required to take action. Otherwise they can be charged as an accessory to what is essentially a crime. For the most part, LL wants to remain neutral in resident to resident disputes, but in this case they can't.

Hosting content on their servers to commit fraud with also makes them an accessory to what is a crime.

 

My guess is it has something to do with DMCA documenting it before going to court, whereas fraud, you'd have to go to court first, and LL thinks not many people will do that over the microtransactions...

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Here they still stay choose neutrality. See DMCA page, this it what they write:

 

How does Linden Lab determine who "wins" and "loses"?
Linden Lab does not adjudicate the substance of the copyright claim: we do not declare winners and losers. Your copyright in an item is determined in the real world, by real-world processes including the DMCA. The DMCA process allows users of an online service to resolve copyright disputes using the adjudication systems available in the real world.



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Gadget Portal wrote:


Mylar wrote:

as the company that's hosting the content, if LL receives a DMCA notice they are legally required to take action. Otherwise they can be charged as an accessory to what is essentially a crime. For the most part, LL wants to remain neutral in resident to resident disputes, but in this case they can't.

Hosting content on their servers to commit fraud with also makes them an accessory to what
is
a crime.

 

My guess is it has something to do with DMCA documenting it before going to court, whereas fraud, you'd have to go to court first, and LL thinks not many people will do that over the microtransactions...

This I don't know. I'm not a legal expert.  But I can almost guarantee that LL has a team of legal experts. And they're going to do the absolute minimum necessary to cover their own assets. The law requires their involvement in one instance, and not in another. So that's what they do. Beyond that I don't have the answer :P

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