Structured or Slippery? SL Terms of Service 2014

SSJ-HOT-new tosRather than approach intellectual property from the legal side, which changes, why not start with the concerns of the creators, which do not change? Some of these concerns are myths without base, some of them are paralyzingly real. A year has past since Linden Labs came out with a controversial version of their Terms of Service for Second Life®. Now they have another version. What does it mean to the creator’s basic fears?

To match the legal writing to creator concerns requires knowing the latter. From years of observation in both the virtual and the real worlds, I conclude that these are the basic Artist Fears, some appropriate for the Terms of Service, and some not.  (If you can think of more, please contribute):

Artist Fears

A. losing builds—the idea that LL could shut down SL and all would be gone.

B. copyright violations—others using the work in their own creations

C. piracy—stealing designs and what to do about it, including LL violating creators’ rights

D. visibility—no one will show up at exhibits, not enough ways to build audiences *

E. competition—too many people doing the same thing, even copying *

F. invasion—mischief makers who are griefers or ex-relationship pests

The solutions to each of these major fears requires education. * The marketing concerns of D and E are not applicable to LL, which allows for a free trade environment. The others are fraught with misunderstandings.

Terms of Service Concerns:

Picking carefully through this word-by-word, and not bothering to compare closely with last year, it does resonate some of the same deficiencies. And, it can certainly gain in clarification. Here are highlights of what to consider (section numbers respond to the portion in the ToS that applies):

2.1 Be careful how we use LL trademark, especially their logo. It must conform to their identity standards. See Trademark Guidelines.

2.2 A Linden InWorld Content License allows us to “reproduce, distribute, prepare derivative works of, display and perform the Linden InWorld Content ….” The Snapshot and Machinima Policy  describes how photos and videos taken of public areas within SL can be used by creators.

Some land owners have covenants that may not allow snapshots, so creators should check if wishing to publish or use images in artwork. Also, for machinima, any avatar that appears recognizably needs to give permission to the creator. This consent does not apply to snapshots.

2.3  You own anything you upload into SL, and are responsible for it not violating any other copyrights. However, in signing this, you “waive any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you.” This needs defining. Much of legalese is intentionally vague, but are not moral rights in need of clarification? What constitutes integrity? And, who might be doing the altering?

Service Content License. Here is the one that strikes the fear bells in creators, because it grants LL the license to use our creations in any manner they choose, including modifying it and selling it. This is the same argument last year. It is fine if they take user content for purposes “debugging, testing, or providing support.” But when they cross the line of violating copyright, that legally takes precedence over license. The same restrictions for trademark use of creator content must apply. How they employ such a license to use creator content can potentially enrage the creative community. It may not be that creators are a large number to LL, and it may also be that we are replaced easily, but we are pests. And we scream very loudly over injustice, whether we understand it or not.

2.4 User Content License. If we display content publicly in SL, we grant other users the right to “use, reproduce, distribute, prepare derivative works of, display, and perform the content.” Again what matters here is the difference between a license and a copyright. A license may be granted for content use, but HOW it is used is still governed by copyright. So this describes only part of the legal scenario. One statement eludes to this: “when you receive a User Content License you receive only licensing and use rights: You therefor do not acquire ownership of any copies of the Content, or transfer of any copyright ….” However, it does not state that others can violate our copyrights by how our work is presented by them.

We own the copyright of what we create and gain rights for all reproduction, distribution, etc. whether inside or outside SL, as part of that. If we grant use licenses, then we need to know the difference between copyright and license.

2.7 This section outlines protective rights against using content owned by others. It is our responsibility as creators to know when we are violating someone else’s copyright. LL also introduces modification concerns for their new Desura platform. This will open a whole new range of concerns as it develops.

Also note section 9 that covers LL’s right to terminate and is not liable to creators’ for loss of property. So if we have a business in SL, and LL decides our business will not be in SL (perhaps SL ends or is sold), then we have no recourse for lost income or damages for lost property.

This brings up issues that are simply good business. It may also forces us to either limit what is released inworld, or to be sure that products also reach our markets through other vehicles other than SL. No one knows the longevity of any one platform. But building an audience and a customer base is not easy for any business. And that networking is not property of LL. It is wise to have multiple ways to connect with our markets.

This new ToS has some of the same weaknesses as last year. Dealing with created property is difficult for the legal system. It defies categorization and is fraught with grey areas. Some of this vagueness is used to LL’s advantage. And some we simply have to give away to them because if we don’t we are locked out. Because we have to agree to it, our legal position of influence is weakened.

But again, as last year, the main lesson here is to understand copyright as a creator. This ToS acknowledges that the creator owns the copyright of original works. Know what that means. And ask for clarification on the points of vagueness in LL’s newest attempt to control the uncontrollable. —Eleanor Medier, publisher

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Published in complimentary versions: in-world and online.
— The in-world magazine has topics that relate to those who understand the virtual context, including photographs, parallel articles. It has tabs for information landmarks, and web links.
— The online magazine expresses how the virtual world mirros the real one. It has additional articles, links, and resources.

Please see the INDEX for all contributors and articles.

Contributions are encouraged if covering topics relevant to real world readers.
Comments and opinions are also encouraged.

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Eleanor Medier (avatar of Liane Sebastian)

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Liane Sebastian wears an editor’s hat, designer’s coat, and artist’s shoes.

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Sim Street Journal explores the relevance of second to first life.
© 2014 by Eleanor Medier, Sim Street Journal. Articles cannot be reprinted without permission.

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