Monday, September 30, 2013

2014 HELP: IPRIGHTS: New Terms of Service for Second Life--grants LL the right to sell your work?

New Terms of Service for Second Life--
grants LL the right to sell your work? 
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A look at the new TOS from Second Life and a layman's comments on what they might mean.
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That is the way it looks to me. But you read it for yourself: Linden Lab Terms of service 
Section 2.3
(Quick trick: to find a specific phrase.like 2.3, on a web page try Ctrl+f.  On Google Chrome, that brings up a little search bar in the upper right.   It might do something useful on other browsers.)  
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That does not mean that they will really do that.  But you can look at both sides: Read on
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Executive Summary
This is not a legal opinion.  If the issue is financially important to you, hire a lawyer
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1.  Creators who sell their creations inworld in SL probably do not have to worry for now.   Since SL may be the main or only outlet for their products, the benefits will probably outweigh the risks.  
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2.  Creators who also sell their products in other worlds may want to consider the possibility that SL could sell your products in those worlds, competing with you.
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3.  Creators who use textures or other other products from web sources may need to check the license.   If the license does not give you the right to sell or convey the unaltered product, you may violate the license by uploading those things to SL
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4.  Creators who sell their products (videos and recordings) in the outworld do need to worry now.  They will not have and cannot sell exclusive rights  to their products.   That limitation may reduce the value of their products and applies now, without regard to actions or intent of LL.  Where possible, they may want to move productions to a grid with TOS more friendly to creators.
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5.  Writers who put their text on notecards may be relinquishing their exclusive rights to what they have written.    

6.  Explanations, even if given by LL personnel, are ruled irrelevant by a clause in the TOS.
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7.  The only possible remedy to the problem is a revision to the TOS which clearly states the rights of the creators as well as the rights claimed by LL.  


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Concerned citizen  Chic Aeon 
recent changes to Linden Lab's Terms of Service grant  them "worldwide rights to sell,resell,license,sub-license... "  the content uploaded by users." So textures, sculpties, meshes, etc. are all included and LL may sell them at will...and give you NOTHING!"
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For more details, contact Chic Aeon  in SL. (Click on the link to bring up her profile.  Best send a notecard,because her IM's will probably be capped.)
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Experienced observer -- Wagner James Au
Here are posts from New World notes
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And here is an excerpt from the above post:
- "Just received this statement from Linden Lab spokesman Peter Gray regarding that post about the concern the new Terms of Service with draconian "we own everything" language has provoked. Here's the key part, worth putting in bold:
Linden Lab respects the proprietary rights of Second Life’s content creators. We regret that our intention in revising our Terms of Service to streamline our business may have been misconstrued by some as an attempt to appropriate Second Life residents’ original content."
Note that no statement by Peter Gray or anyone else has any effect on the TOS.   See this clause: 
11.4 This Agreement and the referenced Policies are the entire understanding between us.  "supersedes any prior or contemporaneous agreements or understandings." 
In other words, the official TOS rules, regardless of what anyone from LL says.   
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 If LL wants to eliminate the misinterpretation, it can rewrite the terms of service to disavow any claim of "worldwide rights to sell,resell,license.."  See the Contrasting TOS from Kitely
Proprietary Rights  We claim no ownership or control over any Content submitted, posted or displayed by you on or through Kitely Services ("User Generated Content")...
4th post by Au
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Longtime Second Life Content Creators Remove SL Work in Protest Over Linden Lab's New Draconian Terms of Service

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5th post by Au
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My view 
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I am not a lawyer and can't give legal advice.  But when you need legal advice about the terms of service for a platform you are paying to use, it may be time to rethink the arrangement.   
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I think Wagner James Au is probably right about the current intentions of LL.   If LL tries to sell your products you will not put any more products into SL.  That could close Second Life and send everybody to Inworldz, SpotOn 3D, Kitely, or the like.  
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But there is more to the story
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At least for now, what LL gains from the new TOS is not just protection from lawsuits, but a new and valuable package of assets. The package can go on the books with some specified dollar value.   If that value ever exceeds the value of the operating company, a possible business plan would be: close the operation and monetize the assets.   
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I don't really think that outcome is likely in the immediate future, so I don't think people who make and sell things inworld need to worry.  But what about the long term?  What happens if Linden Lab goes bankrupt.  On that, there is a well-considered discussion by Shava Nerad in the 4th post by Wagner James Au.   
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Explanations as to why LL want to rights to sell your products are irrelevant.  Article 11.4 explicitly excludes the effect of any statements outside of the terms of service.  Note that the claim of the right to sell your products makes no reference to sharing the proceeds with you.  They can sell your products on Desura or anywhere in the open simulator world.  They don't need your permission and they don't have to pay you.  If they want to pay you, they can determine what share you get.  
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Note that if you sell your products in the open simulator world, LL can sell those same products in competition with you.  Indeed, since open simulator markets seem to be expanding, one might see that market as a target that motivated the new TOS.  The existing market place could deliver products to other virtual worlds.  The technical side of that should be easy.  Permissions to deliver would be a bigger problem if LL did not have permission from the creators.
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Creators who use textures or other other products from web sources may need to check the permitted conditions of use.   If the license does not give you the right to sell or convey the unaltered product, you may violate the license by giving that right to LL. Some texture sources have already withdrawn permission to upload their products to SL.  Some people have regarded this action as a protest, but it just good business.  They could otherwise find SL marketplace selling their products and have to spend money for legal action to protect their rights.
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Full disclosure: I don't create products for sale in SL, so I can be very casual about the impact of the new TOS on people who do.  I got no dogs in this fight.  I am less casual about the issue of videos produced in SL
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TOS and videographers, singers, stage performers, artists 
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And what about the people who produce content that is exported to the outworld?  LL also claims rights to those products.  LL does not sell these products and would probably not be your choice of outlet.  Your preferred outlet might want exclusive rights.  
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But you don't have exclusive rights to your video or recording if it was produced in SL. Note that this limitation already exists, without any further action by LL.  You have already granted non-exclusive rights to LL.  You cannot sell exclusive rights to your video or recording without getting a release from LL.  And LL can charge what it pleases for that release.
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(I don't know if the TOS applies to videos and music produced under the previous TOS, but I suspect the claim could not be enforced in that case.  But you still might need a lawyer.)
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Lauren Weyland, for example, has a large archive of previous performances.   These include acts by several other comics.  Suppose Lauren or one of these other comics hits the big time.  That previous work becomes valuable.  The TOS may give LL the "worldwide rights to sell,resell,license,sub-license, etc..."   Linden Lab could claim the right to put out their own series, made of excerpts from existing shows done in Second Life.  Something like "Lindens Love Lauren."   
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The same issue would apply to a musical or other performance captured on video in Second Life.    Musicians who make RL albums of their performances could find their products in competition with album sets by LL: "The Best Jazz in Second Life."  That would promote the performer, so it might not be all bad.   But performers would not like it that someone seized their performances for distribution without permission. 
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The issue would also apply to artwork created in Second Life and stored as textures or objects.   That matter is discussed by Shava Nerad in the 4th post by  Wagner James Au.  
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The new TOS also casts a shadow over the role playing use of materials under copyright or trademark.  The owners of such rights may be willing to accept such use by fan groups for role play purposes, but how will they react when they find that LL may now claim "worldwide rights to sell,resell,license,sub-license..."  those materials?  
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Writers may also want to consider the implications of putting their work into notecards.  They may be relinquishing  their exclusive rights to what they have written.  That issue might not stand up in court, but legal action is expensive.   Other methods of transfer, such as Google Drive, may be a wise precaution.   
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Videos, games, and educational materials  produced in SL
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This is where the TOS changes force a change in my plans. And maybe in your plans if you produce any content that might have commercial value.
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I have been working with a group of writers and others on a project to write and produce commercially marketable comedy videos in Second Life.  If that project is successful, we could be looking for funding from Kickstarter or from Venture Capitalists.  
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If we produce videos with commercial value, we would want to sell them.  A key question in such matters would be: Do we have exclusive rights?  For videos produced in Second LIfe, we don't.  Maybe we could win it in court, but we could not claim it now.      
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Indeed, I had previously seen Second Life as a good place to develop a video production business:

Under the new TOS, anyone who expects to make videos of commercial value will have to rethink the implications of granting LL "worldwide rights to sell,resell,license,sub-license.... " the content uploaded by users.  I have updated the article above to warn about the new terms of service.  
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Some people want to protest.  I will not do that.  I have already opened an account at Kitely.    I get 20 sims with 100,000 prims each (each sim could hold more than 6 sets of the size that would fill a sim in SL).  Each sim can hold 100 Avs.  I pay $35 a month.  I have to pay extra for user time, but for making videos, we don't need anyone but the people on the job. 
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If I wanted to give the sim unlimited free access, that would cost $40 per month.  No pay for avatar time in that model; you know your total monthly cost.   
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Note:  the pricing and offerings have changed slightly in 2014.  See:  Kitely
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Getting sets and props may be harder.  But with the lower land costs, we can afford to pay more for sets and props.  
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I will continue other activities in Second Life, because that is where the people are.   But I don't plan to produce any content in SL that might have commercial value.  And I am a bit worried that this action by LL may portend even more changes in SL.  So I have already started looking into alternative platforms, such as  Kitely,  InworldzSpotOn3D.
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Video-Machinima in virtual worlds
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