amarock Amat Posted October 1, 2011 Share Posted October 1, 2011 I am curoius, I bought something that was full perm, blah blah blah about stuff. I opened it up and then it came with a user agreement stuffs and all that, which was not listed in the purchase before hand. I did not agree to alot of their what i view exterme terms. I asked for a refund they refused. So now am somewhat in a bitter place, of well legely they did not give me notice before I purchased and they will not refund. Do I know hold the right to use them as I see fit, as they did not make any warning of a user agreement before purchase? Link to comment Share on other sites More sharing options...
Celestiall Nightfire Posted October 1, 2011 Share Posted October 1, 2011 amarock Amat wrote: Do I know hold the right to use them as I see fit, as they did not make any warning of a user agreement before purchase? No. You did read their user agreement. Whether is was before, or after the purchase, is not relevant. You are aware of the terms in the user agreement. So, if you choose to disregard them, then the seller *can* choose to pursue legal action. Link to comment Share on other sites More sharing options...
amarock Amat Posted October 1, 2011 Author Share Posted October 1, 2011 If you sold me a car, and said after I hand you the money , I cant drive on tuesdays and i ask for my money back and you wont. How am I legely bound to your statment? Link to comment Share on other sites More sharing options...
Josh Susanto Posted October 1, 2011 Share Posted October 1, 2011 "I'm no lawyer, but it seems to me that..." The only possible binding agreement is that which existed at the time of the transaction, or to which both parties explicitly consented later. If the merchant had neither provided limitations to use nor indicated that they existed, then there was no agreement to them. I would just: 1]offer the merchant a choice between refunding the item and having the extra limitations soundly ignored (explaining very clearly why and how long he has to refund you before you construe failure to do so as permission to ignore the extra limits), 2] meticulously document that fact that I had offered such, 3] post such documentation here and elsewhere, 4] wait either for the refund or for the refund offer to expire. Link to comment Share on other sites More sharing options...
Celestiall Nightfire Posted October 1, 2011 Share Posted October 1, 2011 amarock Amat wrote: If you sold me a car, and said after I hand you the money , I cant drive on tuesdays and i ask for my money back and you wont. How am I legely bound to your statment? You have created a hypothetical scenario that has no basis in law. But, the scenario that you described where you buy something from the SL marketplace, and the creator put a user agreement into the box, is one that has a basis in RL law. It called US Copyright law. But, why are you asking these questions on the forum, if you then disregard the correct answers? Just do what you want. *shrugs* It's your legal life...not mine. Link to comment Share on other sites More sharing options...
amarock Amat Posted October 1, 2011 Author Share Posted October 1, 2011 http://www.netlitigation.com/netlitigation/cases/brower.htm Link to comment Share on other sites More sharing options...
Anaiya Arnold Posted October 1, 2011 Share Posted October 1, 2011 Not so far as the law is concerned. In real life law, software sellers who pulled this crap were found to be acting unlawfully and their EULAs were found to be unenforcable (this has been tested). That is why most software vendors now include a bit of writing in the EULA that tells you to uninstall all copies of the software and return it to the vendor for a full refund, if you do not wish to accept a EULA that was not spelled out clearly at or prior to the point of sale. A sale is actually just a contract. An implied term is freedom of use. To restrict this implied term, you have to make it part of the terms of the contract. For something to be a binding term of a contract, both parties must be aware of the term at the time contract is completed. That is the point of sale in a sale contract. Failing to advise of end user agreements before selling means there is no agreement with the end user. It's common sense as well as legal fact. Link to comment Share on other sites More sharing options...
Josh Susanto Posted October 1, 2011 Share Posted October 1, 2011 By "no basis in law", I think what you must mean is "is as transparently illegal as what was described in this SL example". Many parts of a car utilize lawfully protected itellectual property, and that is precisely why limitations to its use are explicitly spelled out (be it in very small writing) in documents provided to the buyer BEFORE anything is signed or money changes hands. People are welcome to retain copyright but not by providing notice only after sale of the copyrighted property. Pick a dozen random attorneys out of a phone book and they will all absolutely tell you the same. It's the reason that copyright notice had to be hand-written on over a thousand copies of MLK's "I have a dream" speech when it was first distributed. If even one copy had gone out without that, the copyright would have become unenforceable. Link to comment Share on other sites More sharing options...
Madeliefste Oh Posted October 1, 2011 Share Posted October 1, 2011 The merchant should refund you in my opinion, and you should delete the object from your inventory after the refund. But the fact that the merchant doesn't want to refund, gives you in no case the right to use his content in the way you like. You are responsible to get all necessary rights when you want to sell content that you did not make yourself. TOS:7.8 You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties. ...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. ... When the object is advertised as full perms, and the eula of the merchant limits these permissions, then the product is false advertised. When you bought the product on the marketplace, you can flag it for this reason. Link to comment Share on other sites More sharing options...
Celestiall Nightfire Posted October 1, 2011 Share Posted October 1, 2011 Madeliefste Oh wrote: The merchant should refund you in my opinion, and you should delete the object from your inventory after the refund. But the fact that the merchant doesn't want to refund, gives you in no case the right to use his content in the way you like. You are responsible to get all necessary rights when you want to sell content that you did not make yourself. TOS: 7.8 You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties. ... 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. Thank you Madeliefste for quoting relevant portions of the TOS. I have also bolded some of your words that are pertinent. Link to comment Share on other sites More sharing options...
amarock Amat Posted October 1, 2011 Author Share Posted October 1, 2011 True....but if its false advertising, on the full perm or the TOU for the item. If it was sold as full perm, does that not mean that their rights are clearly spoken on the item they are selling * which i screen shot for my own protection * Therefore it is their slip up to pay for not mine? case in point... Sal's sex gen stuff....no terms of use..just a general help yourself to it....he could not come back at a later point and say..well I am going to add a TOU suddenly here is the paper that goes along with it no one is allowed to sell it anymore. Just becuase it is in the box, does not mean its legit compared to what the seller promised against my buying rights. Link to comment Share on other sites More sharing options...
Celestiall Nightfire Posted October 1, 2011 Share Posted October 1, 2011 amarock Amat wrote: True....but if its false advertising, on the full perm or the TOU for the item. If it was sold as full perm, does that not mean that their rights are clearly spoken on the item they are selling * which i screen shot for my own protection * Therefore it is their slip up to pay for not mine? Sadly, for you, it is not their slip-up to pay for. If it appears the merchant slipped-up in their marketplace listing, then you should notify LL, and go through the proper channels to report that listing on the marketplace. Unfortunately, it still not does allow you to circumvent the TOS or the copyright protections that the seller has in place. If the seller, and you said that they did do this, placed a note-card into their box of merchandise which describes their terms of use, you are legally bound to adhere to their terms. Link to comment Share on other sites More sharing options...
Sassy Romano Posted October 1, 2011 Share Posted October 1, 2011 Celestiall Nightfire wrote: Sadly, for you, it is not their slip-up to pay for. If it appears the merchant slipped-up in their marketplace listing, then you should notify LL, and go through the proper channels to report that listing on the marketplace. Unfortunately, it still not does allow you to circumvent the TOS or the copyright protections that the seller has in place. If the seller, and you said that they did do this, placed a note-card into their box of merchandise which describes their terms of use, you are legally bound to adhere to their terms. Copyright and IP protection are not in question here but it's more a case of "Unfair Contract Terms" and as Josh has already pointed out, shrink wrap licensing is unenforceable and has been tested. However, since the cost of pursuing any legal action is usually pointless here, "buyer beware" takes precedence and it's just easier to make sure that a) Amarock doesn't buy from dysfunctional sellers in future and b) tells all his friends not to buy from dysfunctional sellers including this one. Terms should be visible beforehand and NOT in a box if the vendor is not prepared to offer refund if those terms of the contract were not available for inspection prior to the contract being formed. Link to comment Share on other sites More sharing options...
WADE1 Jya Posted October 1, 2011 Share Posted October 1, 2011 "True....but if its false advertising, on the full perm or the TOU for the item. If it was sold as full perm, does that not mean that their rights are clearly spoken on the item they are selling * which i screen shot for my own protection * Therefore it is their slip up to pay for not mine?" Okay Amarock, you've brought up some interesting yet misconceived points here. It does kind of suck, and it sure ain't great customer service on this merchant's behalf! However, unfortunately this doesn't fall under "false advertising" & you may not do whatever you like with any full perm item. Let me try to explain. The advertisement said the item will arrive to you full-perms... & it did arrive to you full perms. It would have been nice & upfront if the merchant fully detailed their EULA before purchase, but they are by no means legally required to do so. These kind of confusing (and potentially antagonistic) situations is a big part of why I do not sell any full perm goods. Also I hate to play internet lawyer games. Funny enough.... what you did here legally is kind of backwards to what you imagine [Lawyer Cat] Full perm simply means an item arrives to you with all permissions checked open. Its a common misunderstanding in SL that full perm gives the end user carte blanche powers. Quite simply, by RL law, and even by LL ToS, it doesn't give you any special rights. Any sort of EULA the seller wishes can be applied, and some sort of EULA should be generally expected. The general "forgetting" of SL merchants to apply any sort of EULA, and the general absence in SL of EULAs, does nothing to diminish the validity of any standing EULA, should any merchant choose to apply one. Firstly, you screen shot the permissions granted on the item "for your own protection". This would only verify the merchant fulfilled their duty in the bargain... to supply you with a full perm item. Secondly, you've now also posted publicly (which google will archive forever, even if you delete it here) that you read their EULA so you are aware of the terms & thus legally obligated by them. Your public statements here only provide rock-solid evidence that you read & understood the EULA, so it has become indisputably legally binding for you now. To be clear, this EULA was binding anyways, but without your public statements here it might have been harder to prove that you read & understood it. In SL, a EULA is typically not clickwrapped, making it harder to verify acceptance of terms so potentially there is some wiggle room if you had some high-paid lawyer willing to help you attempt to fight your way out of it. Regardless, once you have purchased the item & received the EULA it is legally binding. Even if you took it to court, its unlikely to come out in your favor. [/Lawyer Cat] Link to comment Share on other sites More sharing options...
Sassy Romano Posted October 1, 2011 Share Posted October 1, 2011 On the subject of a shrink wrapped EULA having any validity Wade, many disagree... http://en.wikipedia.org/wiki/Software_license_agreement http://www.lawiki.org/lawwiki/Shrink-wrapped_licence_agreements:_the_UK_legal_position http://www.freibrun.com/articles/articl22.htm etc...etc....etc Link to comment Share on other sites More sharing options...
WADE1 Jya Posted October 1, 2011 Share Posted October 1, 2011 Yep its all a big silly mess, that's why i thought comments from "Lawyer Cat" (not myself) were highly appropriate This kind of thing does vary from jurisdiction to jurisdiction, and lots of disagreement & bickering on all sides. Its a legal quagmire best avoided altogether if possible. In this case, i was only stating my understanding as to the legalities of Amarock's particular actions (for whatever that's worth).... Legal stuff aside, what is probably the most ethical alternative is the merchant should have stated something about this EULA upfront. Regardless, Amarock shouldn't go & intentionally do anything against their wishes, that isn't smart either! Two wrongs don't make a right. Best is just to delete the item, carry on, and don't shop there again. Leaving a negative review of the item, detailing that an unwanted EULA is included, would also be highly appropriate for Amarock to respond with. Lastly, a refund would have been highly appropriate for the merchant to give... but its understandable the merchant don't... as with non-SL software sales there isn't really a genuine way to return such an item (unless transfer-no copy). If only LL allowed a purge from inventory function, mutually verifiable, this would allow refunds to be easily accomplished and many more friendly outcomes i think! Less drama round the grid... Once again, yes full perms leads one into all kinds of confusing (and potentially antagonistic) situations which is why i avoid that whole market sector. Although it might not be where the riches are, i like my little corner of SL... all this fullperms stuff seems to end with super serious e-lawyer battles & nastiness. Link to comment Share on other sites More sharing options...
Josh Susanto Posted October 1, 2011 Share Posted October 1, 2011 (again)"I'm no lawyer but it seems to me that..." An item with effective permissions not to include those advertised at the time of purchase is an item different from that advertised, so false advertising would apply if it can be reasonably construed as either intentional or wilfully negligent (that is, more or less what one should probably construe from no demonstrated interest in discussion of possible refund). If someone buys "fully functional scripted mesh P3nis" from me and I send them "flaming bag of crap" with a note card explaining that that's what they actually agreed to buy because that's what I actually sent them, this is clearly not right. That such a difference between what is ordered and what is delivered is greater in my example than in the given example does not matter in principle, because simple matters of scale are a problem separate from matter of type; type being relevant in both present examples... Permissions shown on a listing, absent any visible disclaimers or other conspicuous clarification, are actual features of the item being advertised, if not of the item being delivered in its place (even using the same item name; even if the advertised item does not exist). If merchants don't want to be bothered with such things, they would do well to understate rather than overstate the effective permissions by not clicking any permissions boxes on the listing form. This very urgent suggestion not followed, a judge or arbiter would next likely be interested in the question of what effort has been taked to resolve the disagreement amicably. If the buyer shows that he gave the merchant ample options and ample time to respond, and that these were not used or met with other amicable gestures by the other party, the outcome of arbitration or other procedure probably doesn't look so great for the party that both generated and perpetuated the "ambiguity"; that is: not so good for the merchant. Link to comment Share on other sites More sharing options...
Anaiya Arnold Posted October 1, 2011 Share Posted October 1, 2011 A EULA is part of a sales contract. A party cannot enter into a binding contract without full knowledge of it, and one party cannot unilaterially alter a completed contract without the consent of every other effected party to the contract. It's not in the least bit complicated. What does make for complexity are two issues. Particular to SL is what license is implicitly granted in SL by the permissions system and TOS combined. Creators are obliged to license anything they upload to SL, and to adhere to the permissions system. This possibly grants a default use license to use and dispose of items in accordance with their technical permissions, so that the failure to restrict the end user as a term of the contract constitutes an implied term of the contract. The second issue only arises if it turns out there is no default license implied by the TOS, and that's the matter of remedy more widely. Returning to the real world, this will be much more variable by jurisdiction, case facts, and presiding authority, than would be any issue of whether or not a party to a contract can unilaterally insert binding clauses or conditions into an already completed contract (they can't). It's not understandable that the merchant will not refund. It's reprehensible. They have willingly entered into a contract with no intention of upholding the contract. They may not have understood that this is what they were doing, but they cannot have reasonably failed to understand that it is unfair to sell an item without disclosing limitations up front. Not only would the law oblige to them to refund at least (if not oblige them to honour the initial contract by granting a full license no more restrictive than explicitly indicated prior to the sale), but so would basic ethics. They may not understand the former, but there's no good excuse for failing to sense and apply the latter. Link to comment Share on other sites More sharing options...
Josh Susanto Posted October 2, 2011 Share Posted October 2, 2011 These are just some of the reasons why I figure once I've sold somthing, it's going to behave as if it is free. If I have clicked the permissions buttons, I'll be providing the permissions. This is easier for me to understand, and for the customer. If I wanted to restrict permissions somehow, the first thing I would do is make sure that I advertise even less than what I provide. Link to comment Share on other sites More sharing options...
Nefertiti Nefarious Posted October 2, 2011 Share Posted October 2, 2011 amarock Amat wrote: I am curoius, I bought something that was full perm, blah blah blah about stuff. I opened it up and then it came with a user agreement stuffs and all that, which was not listed in the purchase before hand. I did not agree to alot of their what i view exterme terms. I asked for a refund they refused. So now am somewhat in a bitter place, of well legely they did not give me notice before I purchased and they will not refund. Do I know hold the right to use them as I see fit, as they did not make any warning of a user agreement before purchase? If the product listing in the marketplace said "full perms" ... it's full perms. That was the contract they offered in the sale page, and the one you agreed to hwen you clicked the buy button. Make a screenshot of the sale page in case they try to inflict the user agreement on you. I'd be annoyed enough to file an AR for "Item not as advertised" if anyone did something stupid like that with a product I bought. Link to comment Share on other sites More sharing options...
Polenth Yue Posted October 2, 2011 Share Posted October 2, 2011 In rights transfer cases where there was no agreement, the law assumes the minimum rights required were transferred. For writing for example, this is a one time right to publish the work. All other rights stay with the original producer of the work. For SL stuff, the most likely minimum would be the right to use it in your own builds (of any number) in SL only. Rights such as selling the item directly or uploading to other grids are not required to build in SL. The point being it depends what these 'extreme rights' were. If they restricted it to minimum rights only, this is what would have been assumed without an agreement, so the law wouldn't see that as extreme. If they set terms that mean you can't use the item in any build, and only informed you after payment, you may have a case for arguing it was a contract you didn't agree to (though honestly, it's not worth taking to court). Link to comment Share on other sites More sharing options...
Josh Susanto Posted October 2, 2011 Share Posted October 2, 2011 A note card should provide extra rights, not abridge the rights advertised by clicking the buttons. If the buttons don't indicate what rights are to be provided, why are they there to be clicked in the first place? Seriously, if a judge asked the above question, what would the answer have to be? Link to comment Share on other sites More sharing options...
Paul Hexem Posted October 4, 2011 Share Posted October 4, 2011 I see this come up a lot, and I see the same few creators insist up and down that a notecard in a purchased box is a valid EULA. The only time this is true is if a refund is offered if the user does not agree to the EULA. Otherwise, it's invalid and can be ignored. It's simple. You cannot sell something to someone, take their money, then say "By the way, you just agreed that you can only use it on Sundays. No refunds. Bye." You either have to show that EULA prior to the purchase and make sure they've seen it and read it, or you have to offer a refund if the agreement is declined. That's why software tells you to repack and bring it back for a full refund if you disagree with the EULA that pops up during the install. That's why car dealers and real estate agents make you sign all that stuff before the transaction goes through. And so on. So to answer the question in this thread- if the EULA was hidden inside the sale box and not posted visibly before purchase, and the creator will not give a refund after you've made it obvious to them you disagree and intend to return/delete the items for said refund, you can ignore it and use the item as you see fit. If they pursue legal action over an SL sale, just make sure to countersue for your legal expenses after they lose the case. Link to comment Share on other sites More sharing options...
Sassy Romano Posted October 8, 2011 Share Posted October 8, 2011 From the mesh upload quiz. The "correct answer being 1." This is actually wrong for all of the reasons stated in the thread, including the notecard in the box with NO prior offer such that the contract can be appropriately negotiated would render it unenforceable:- Darlene sells full permission mesh pillars, archways, and roof tops for other residents to use in their Second Life buildings. Darlene includes a notecard with the items. The notecard states that the items can only be re-sold as part of an original creation and are not to be re-sold as standalone items. Sally purchased the mesh objects from Darlene and wants to resell them. Sally can... Include the mesh objects in the prefab houses that she creates, then sell the houses. Sell the mesh objects as standalone items as long as she creates new packaging for them. The permission settings on the mesh objects are "full perms," she can do whatever she likes with them. Sell the mesh objects as standalone items as long as she renames each object. Link to comment Share on other sites More sharing options...
Qwalyphi Korpov Posted October 8, 2011 Share Posted October 8, 2011 The resident who provided the previous content, if any, has replaced it with this generic statement. Link to comment Share on other sites More sharing options...
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