Monday, October 28, 2013

2013 IPRIGHTS:: Linden Lab is reworking the terms of service (TOS). Exchange of letters

Linden Lab is reworking the terms of service (TOS).
Exchange of letters
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UCCSL writes to Linden Lab about concerns over the TOS.  Linden Lab responds.
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Executive Summary
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Exchange of letters between The UCCSL Council, Kylie Sabra, Council Facilitator  and Peter Gray, Director, Global Communications, Linden Lab
  • LL recognizes a need to rework the TOS
  • The purpose of the recent TOS language was to "extend the ability for content creators to commercially exploit their intellectual property through user-to-user transactions across Linden Lab’s other products and services (including our distribution platform, Desura), not just within Second Life." 
  • The purpose the rework is to protect "content creators’ intellectual property ownership while permitting Linden Lab to, among other things, act as an agent of content creators (such as yourselves), licensed to sell and re-sell such content."
My reaction 
  • This is a good response.   
  • No meeting with LL is needed at this time because they have conceded the first point of such a meeting, that there needs to be a change in TOS.
  • The next step for us is to specify the changes we want and/or the language we would find acceptable.
  • The changes need to accommodate LL's intention to act as agent for content creators across all LL's products.    
  • It would be in the interest of all content creators in the virtual worlds for UCCSL to develop  model contract language for the case in which independent digital artists/creators pay a company to provide a platform for their digital art and separate language for the case in which these artists allow a company to act as an agent in selling their work.  
  • I invite others to post their views in the comments section below.  If there are useful comments, I will post another article with a summary.
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Letter to LL 
Rod Humble, CEO
Peter Gray, Director, Global Communications
Linden Lab Headquarters
945 Battery Street
San Francisco, CA 94111
VIA: Certified Mail, Email & SL Forums
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Dear Sirs:
The United Content Creators of Second Life is a group of residents and content creators, in 
both the commercial and artistic communities, who share concerns regarding the August, 2013 Terms of Service, specifically Section 2.3. To resolve these issues and concerns, we ask that you sit down and meet with the UCCSL Council.
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Please contact Kylie Sabra in world to set a time. 
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Warm regards, 
The UCCSL Council
Kylie Sabra, Council Facilitator
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Email from Peter Gray, Director, Global Communications, Linden Lab
Received October 24, 2003Dear Kylie, et al,
- Thank you for your email. We appreciate your group’s concerns and have seen others express similar concerns as well.We greatly value Second Life’s content creators, whose collective contributions help make the virtual world the vibrant experience that it is today. We remain committed to providing Second Life as a platform on which residents can create and profit from their creations. This philosophy is central to Linden Lab, and is something that we are ultimately seeking to extend to all of our products and platforms.
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Accordingly, the revision to our Terms of Service was made in order to further extend the ability for content creators to commercially exploit their intellectual property through user-to-user transactions across Linden Lab’s other products and services (including our distribution platform, Desura), not just within Second Life.
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We believe that it would be more fruitful to avoid further debate of the assertions made to date regarding the intent and effect of our updated Terms of Service, and instead focus on whether there may be an approach to address the concerns that have arisen in the community, while also ensuring that our policy remains applicable to our other products and services, and without reverting to the prior wording. 
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To that end, we are currently reviewing what changes could be made that would resolve the concerns of Second Life content creators, specifically protecting content creators’ intellectual property ownership while permitting Linden Lab to, among other things, act as an agent of content creators (such as yourselves), licensed to sell and re-sell such content.
We are optimistic that we will be able to arrive at a mutually agreeable and beneficial way forward, and ask for your group’s continued patience as we work to do so.
-Best
Peter
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My Comments
LL as a selling agent
Since LL wants to act as an agent for the creators on its platform, I did a little web research on the usual arrangements between creators and their agents. 

I am not a lawyer and cannot give legal advice.  What I say below is just my opinion, based on common sense.

Agent:   in commercial law, is a person who is authorized to act on behalf of another (called the principal) to create a legal relationship with a third party.
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Below are notes taken from a  model agreement I found on the web for agreements between artists and agents.   The agreement is not fully applicable to the current case, but can serve to point out issues that need to be addressed:
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ARTIST-AGENT AGREEMENT, Issues
  • Duration of agreement is limited and specified
  • Commissions. How will the agent determine its charges for selling the products. 
  • Payments.  How (what currency) will LL pay the artists, what is the time allowed  before the payment becomes overdue, what is the penalty for overdue payments? 
  • Accounting.  How will LL provide an accounting of its services as agent
  • Termination: How can the artist terminate the agreement.

Details of the service to be provided by the agent
Here the agent offers products for sale in the marketplace, handles the transactions, and remits payment to the creator.  The creators may want to specify what they consider satisfactory service from LL acting as their agent 

Scope of the agent agreement
Agent agreements are voluntary on the part of both parties.  The agreement in the TOS can be considered voluntary only in the sense that LL says:
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"Let us be your agent or get out of Second Life."
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LL does need certain rights to operate the service.  Other platforms handle that need by specifying that you grant them the rights needed to provide the service.  (See Kitely terms  of service.) 
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The new TOS claims other rights that LL needs to act as your agent.  But it only needs those rights if you want it to act as your agent in selling your products.  Under the current TOS, LL can act as your agent whether you want LL to do that or not
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More reasonable language would recognize that LL offers a separate service to market your products as your agent.  If you want to use that service, you will have to accept the specified additional conditions.  
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Where did LL get this language?
I did a Google search for the TOS language beyond the LL, using this search phrase: 
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"unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license" -Linden
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The -Linden excludes cases that have the word Linden in them.
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Here are 2 of over 300 returns
Search on page with Google Chrome: Ctrl+f, search bar upper right 

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4 comments:

  1. It is great to see that the quick action of the UCCSL was able to get LL's attention and that they are now working to reword the TOS.

    I also agree with this article that there needs to be standard wording/terms that are stable and included in each issuance of a TOS. Ideally, I would like to see terms that are available to UCCSL/Guild members as this would offer a valuable benefit for members who join. (a non commercial TOS for general use of service and a commercial TOS that applies to content creators).

    It would also be great if LL would recognize UCCSL and the Guilds as entities and authorities that they will communicate with and work with to resolve content/creator issues. In this way the opinions of both organizations carry weight.

    In fairness I do think everyone should have access to the same rights and priviledges

    ReplyDelete
  2. So, my thought is, the operative term here is "appease." The furor hasn't died down. The SL Bar Association has said, "Well, basically you're toast under these terms." And the brain drain continues.

    So Gray and Humble have now said, "So, sit on your thumbs and lose momentum, you guys, and we'll throw you a bone when we're good and ready."

    And when Kylie said, "Please speak to us directly?" Gray said, "Please sit and spin on your thumbs, and we'll throw you a bone when we're good and ready. No exceptions."

    They don't want to give anyone the option to ask them specific hard questions. Smart man.

    And if they give it time, the groups -- including Kylie's -- are likely to lose membership and momentum. Historically, the wise heads will leave the high risk environment (in this case for the non-SL metaverse) and the sheeple will stay and decide that nothing can go wrong...go wrong...go wrong...

    They could prove me wrong by being community minded -- but they won't.

    You're being played.

    ReplyDelete
    Replies
    1. I agree Shava. LL is not a person. It is a legal entity and functions according to the legal terms it sets forth and according to State and Federal laws. LL may have had the best of intentions with the new TOS but like most businesses they will wait for the dust to settle before deciding if any action is necessary on their part.

      We vote with our dollars. I feel strongly that an SL-wide strike on new content and even in stopping the sale of items will send a clear message that it is the content that drives user and LL income streams. When their bottom line is affected they will take notice. But it requires that the best creators participate and that most sellers participate.

      All the content for sale in SL can be sold anywhere. We don't need SL but they have most people believing that we do. It's time to change perceptions.

      hehe...I can get pretty riled up : )

      Delete
  3. This comment has been removed by the author.

    ReplyDelete