Friday, November 1, 2013

2013 IPRIGHTS: What changes does UCCSL want in the TOS?

What changes does UCCSL want in the TOS?
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My summary of changes that content creators in Second Life seem to want in the TOS
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I summarized my view of the current status as follows:
  • 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.
Some have questioned my statement; "No meeting with LL is needed at this time."
They have argued that we need to meet with them and tell them what we want.  
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We certainly do need to tell them what we want.   But we are not ready to do that now.   We need a written statement of what we want to change and what we want instead.  And we need evidence that this represents the views of the UCCSL membership.  What we need to do now is: 
  1. develop such a statement, 
  2. work it over to satisfy the UCCSL members who provide inputs,
  3. get a vote or something from the UCCSL membership (and/or from a larger group).  
Here I offer the beginnings of such a statement.  
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I am not  a lawyer and cannot give legal advice.  What follows is my opinion and does not reflect the position of UCCSL  or of any other party.  Furthermore, what I offer below goes beyond the issue UCCSL is currently dealing with to suggest the beginning of a model agreement that would reflect what users of virtual worlds and content creators would consider fair in dealing with any virtual world  and any virtual world market place.
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Suggested language for the section that applies to everyone. 
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I have picked up most of this language from the Kitely Terms of Service.  Some additional language was suggested by recent comments I have seen
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  1. We claim no ownership or control over any content submitted, posted, displayed, or captured as video by you on or through our services.
  2. You or a third party licensor, as appropriate,  retain all patent, trademark and copyright to any User Generated Content you submit, post, display, or sell on or through our services
  3. By submitting, posting, displaying or selling Content on or through Linden Lab services you agree to allow Linden Lab services to handle your User Generated Content in all the ways required to provide the Linden Lab services you elected to use.
  4. Linden Lab agrees that any new TOS cannot take effect until 30 days after the posting and public announcement of the change on the official Linden Lab blog
  5. Linden Lab agrees that if a new TOS changes the conditions of ownership or licensing of content submitted, posted, displayed, or captured as video, the new terms do not apply to existing content 
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Additional terms for producers who choose to allow Linden Lab to serve as their non-exclusive agent in marketing their products.
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The current terms of service that would apply the case in which LL acts as an agent  for content creators seem to be thoroughly in favor of LL.  In a previous article, I cited some features of a standard agent's contract:
These features seem to be missing in the current TOS.  The current TOS seems to be grossly one-sided in favor of Linden Lab.  That is not remarkable--Linden Lab wrote it and imposed it.   I don't think anyone would voluntarily accept the current TOS as a basis for contracting with an agent if they had an alternative agent. 
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Items in italics below are suggested as language for the TOS
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Linden Lab may, if it chooses, offer its services as an agent to market products created on a platform operated by Linden Lab.   Persons (producers) who choose to accept such services must accept the following additional terms that are required to serve as agent for the producer
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(Here LL may insert the conditions it considers necessary to serve as agent)
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Linden Lab accepts the following restrictions on its actions:
  1. Linden Lab cannot act as an agent of a producer without recorded consent of that producer
  2. Recorded consent included the terms of agreement under which the agency agreement is made
  3. The terms  of agreement must specify the agency fee
  4. The terms of agreement must specify the duration of the agreement and the conditions that permit early termination
  5. The terms of agreement must specify the payment arrangements, currency, and acceptable time between receipt of payment by Linden Lab and delivery of payment to the producer
  6. The terms of agreement must specify how Linden Lab will provide an account of the funds it handles on behalf of the producer
This statement is intended as a preliminary draft of a model TOS that UCCSL might prepare, reivse after legal review , and post on the internet for use in preparing or evaluating the Terms of Service for virtual world platforms and in virtual world markets with respect to fair treatment of content creators.  
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If you have comments or suggestions, please put them in the comments section.  I will review the comments later and perhaps write a summary.
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Suggestion by Cristie Cobalt added as comment on 
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).
Suggested path for UCCSL
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I suggest that UCCSL consider developing as a professional organization for content creators in virtual worlds. The development of a standardized platform and market TOS that respects the interests of the content creators would be a first step in that direction.  Some content creators are already looking into alternative virtual world platforms in the Opensim and  markets a being developed that can sell to the Hypergrid.   There is a developing need for an organization that will look out for the interests of content creators in all the virtual worlds, and I hope UCCSL can develop to meet that need.
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About that meeting
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This draft is available to all members of the UCCSL.  I hope that after due consideration and revision, we will have a document that most members will accept as representing their interests.  That will serve to tell them what we want.  At that point, assuming that Linden Lab has not accepted substantially similar language, the UCCSL may want to seek a meeting.
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Personally, I don't think a meeting is urgent.  I have no objection at all to carrying on the discussion in public forums.  If LL posts a new TOS, we will respond to that, comparing it with the model TOS we have developed.  
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4 comments:

  1. Post by Storm Clarence who had trouble getting blogger to accept his post directly
    This was my post: Nicely done, Thinkerer. I have a but however. What if LL says no to any or all the stips mentioned? What is/are the make or break items in the language? LL already stated they will NOT go back to the previous TOS language. Although it may not seem so, but I wish this group luck. But from what I read on SLF, it wouldn't matter what was re-written in the TOS, there exists the same LL bashers and lots of whining. LL will NEVER be able to please them all... so I think we are going to lose some people. It may be worth it for LL in the end. Just my opinion. Form what I read of Catherine Cotton (a very oldbie beta user) and her plugging for Inworldz (even in her signature line) she would be very happy if people left and went to Inworldz. She is egging on the right people too. I think the enemy is within, and it is not LL and the TOS.

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    Replies
    1. It is up to UCCSL to decide what conditions it will accept. Negotiation starts with what you want, not with what you will accept. As you will recall, I have long been a supporter of SL, but the new TOS have already led me to move some of my activities to Kitely. And the terms I suggested are not specific to SL -- I would like to see them apply to all virtual worlds and virtual markets.

      My own opinion of make or break is language describing the agent relationship. LL says that it wants to serve as agent for content creators, so it should not object to a specification of its terms of agency. The currrent terms allow LL to sell the creator's products, but say nothing about acting as agent and nothing about paying the creator.

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  2. A little something I wanted to add...LL is an American company. The way to influence an American company is to show you can influence their bottom line. They make money from the items we make and from the land we rent/buy. They even make money when you buy L$. Losing the best and brightest content creators may not hurt SL/LL in the short term but in the long term it wil have an impact.

    I fully support staying in SL. I also realize that money holds influence with businesses. If your customers leave what will you have to do to win them back? It would serve their interests to give in and remove our fears. Come Hell or high waters, a service will arise the victor.

    A nay-sayer once said, "Why re-invent the wheel?" The answer...it is a requirement for progress. If SL/LL want continued growth they will have to stop treating users as though we exist to serve them. They exist because we come to them.


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  3. I find the language on waiver of moral rights objectionable generally, and particularly unfair. I don't understand why these rights need to be waived if LL merely needs to be able to offer user created content for sale on other platforms that it may purchase. The offending language is the third paragraph in section 2.3. I also think a commercial TOS for businesses in SL makes a lot of sense.

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