Monday, June 2, 2014

2014 IPRIGHTS: TOS: Nine months: Where do we stand? Where do we go?

TOS: Nine months:  Where do we stand?  
Where do we go?
Scroll down for news and notes
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The issue:  

Recent News

Statement from Ebbe Altberg at VWBPE

I am working with my Legal Counsel to try to try to figure out how we can make it more obvious – or very obvious – that the creators of the content own the content … we’re working on some simple tweaks to the language to make that more explicit.”   Living in a Modem World
This statement is either uninformed or misleading.  The concern has never been that you give LL your work.  You clearly continue to own your work.  No  language change is needed to make that clear.  But you license SL to sell your work without getting your permission, without paying you, without notifying you, and without even crediting you. 

Other news

Nine months ago

Although that response sounded promising, nine months have passed and there has been no change in the TOS.   Other statements from Linden Lab claim that they really don't mean that you have given them license to sell your Second Life products anywhere, without paying you and potentially in completion with you.   Another clause in the TOS says that such statements, outside of the TOS, have no binding effect on the TOS.  
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Furthermore, the explanation given by Peter Gray, Director, Global Communications, Linden Lab was this:
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.
But nine months later, there has been no public announcement from Linden Lab about how it plans to help content creators"commercially exploit their intellectual property".  No word about payment to content creators.  No word about how LL will provide an accounting of these transactions across Linden Lab's other products and services.  
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Linden Lab, of course, does not need to pay content creators if it sells their products on Desura or elsewhere.  At least not those who have accepted the current TOS.    From those creators, LL already has a license to sell their products.  And the TOS makes no mention of any payments to content creators.  
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Indeed, LL could now be selling such products on Desura or elsewhere.  How would anyone know?  The TOS says nothing about giving reports or even credit to the content creator.
 The only way a creator would know whether LL is selling his/her products would be to search the offerings on Desura and elsewhere.    Perhaps Google Image Search would help.

What you have agreed to in the Terms of Service (TOS)

2.3 You grant Linden Lab certain licenses to your User Content....you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same...

Where does the language come from?

Employee agreements often have similar language. And so does the use of Mattell's web posting site.  

In the case of Mattell, they are providing to the users a free web posting site.  The agreement is quite appropriate when applied to employees, who are being paid to produce the content that the company is claiming to own.  
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Content creators in Second Life, however, are not employees of Linden Lab.  Nor is Linden Lab providing them a free service.  Linden Lab is well paid for the services it is providing, by those very content creators whose content LL is claiming the right to sell.   

Can you use Creative Commons content in Second Life?

I am not a lawyer and cannot give legal advice.  If any of the issues discussed here are legally or financially important to you, you should consult a lawyer.   Or consider whether you want to keep doing business with a company that forces you to pay for legal advice to protect yourself.
  • Most Creative Commons licenses require attribution.
  • When you use such licensed content in SL, you include attribution.
  • But you impose no such requirement on LL as you grant them licence to sell your work
  • By uploading something, you guarantee to LL that you have the right to use the it this way.
  • But what you are doing has changed. 
  • You are now licensing LL to do whatever it pleases with that content. 
  • You are licensing LL to omit the attribution.
  • You have no right to issue that license.
  • So if LL omits the license, LL could get sued, right?
  • Right, but you could be the one who pays.
  • Because elsewhere in the TOS, you agree:
  • "...you agree to defend, indemnify and hold harmless Linden Lab...",
  • if you upload something without having full rights to do that.
  • Linden Lab TOS and Creative Commons BY NALATES URRIAH

What options are available to content creators?

I am not a lawyer and cannot give legal advice.  If any of the issues discussed here are legally or financially important to you, you should consult a lawyer.   Or consider whether you want to keep doing business with a company that makes you to pay for legal advice to protect yourself.  

Inworld content creators: options

Inworld content creators are people who create content in virtual worlds and expect to sell it to other people in virtual worlds. 

 1.  Stay with Second Life.  Unless LL is actually selling your content without paying you, you probably have no basis (and little motivation) for legal action.  All you can do is check places like Desura, where they could be selling your content.  
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Meanwhile, check the evidence you can use to establish your date of creation.  Is it in the hands of a trustworthy third party?  If it is in your hands, how can you establish that you never altered it?  If it is on Linden Lab's computers, how do you know it will be there when you need it?

Outworld content creators: 

Outworld content creators use virtual worlds to create content that they expect to sell in the outworld.  Creative content sold in the outworld often loses much of its value if the owner cannot sell exclusive rights.  The TOS may deny these creators the claim of exclusive rights, even if LL does nothing more.  LL could have removed the problem by a change in the TOS with a clear waiver of that claim.  LL has not removed the problem.
It is probably too late for LL to do anything about this.  People who are concerned have probably stopped uploading creative content or moved the affected activities to Opensim grids.

Related 

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News and Notes

Related blog posts, upcoming, current, and recent events
Scroll down for news and notes

U.S. Army Research Lab’s Simulation & Training Technology Center announced an open postdoctoral position on the MOSES team, which is working to develop the MOSES OpenSim grid and associated technologies.   Hypergrid Business

    Around the virtual worlds  

    Arts

    • The Spotlight Theatre League, in association with Lady Garden Cabaret, 
    • is auditioning for the musical Rent in Second Life    
    • The performance will be held October 30th at 7pm slt
    • Auditions will be held June 9th - 13th from 1pm to 4pm slt
    • in the showroom at the Lady Garden Cabaret.
    • Location Link. Click to go or drag to the viewer screen:
    • http://maps.secondlife.com/secondlife/Liberty%20Coast/161/111/1201
    • Please contact Brad Mactavish in Second Life to schedule an audition.

      Writing

      Web resources

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      Video-Machinima in virtual worlds
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      1 comment:

      1. JayR CelaJune 2, 2014 at 5:23 PM

        After 9 month's "Where do we go ?" I'll tel ya where we go, somewhere's else !

        ReplyDelete

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