ToS changes: Legal panel discussion – audio recordings and notes

Update October 28th: Transcripts from the panel are now available on this blog.

Update: The slides for Agenda’s presentation are now of a much higher quality (with thanks to Agenda in making them available outside of SL), and there is a link to a higher-quality video now included in the Related Links.

On Saturday October 19th, a panel of legal experts  – real-life attorneys – sat down at the Rose Theatre, Angel Manor in Second Life to discuss the August 15th changes to the Second Life Terms of Service, address questions on the matter and remove some of the FUD which has built-up around the subject.

In attendance were Agenda Faromet, who in real life is an attorney specialising in privacy and internet law operating out of San Francisco, Tim Faith (SL: Yoss Kamachi), a Maryland attorney with a strong background in IT and who deals with matters related to copyright, IP, trademark, etc., and Juris Amat, a Massachusetts bar member who runs the Virtual Intellectual Property Organisation (VIPO). All three are members of the SL Bar Association, based in-world at Justitia.

In all, the session lasted just under three hours, with initial presentations by Agenda Faromet and Tim Faith (Juris Amat had difficulties attending the first part of the session). Tis was followed by a question-and-answer session moderated by Maxwell Graf, with Kylie Sabra relaying Juris Amat’s replies via voice.

A video of the session is available on-line, and there will be transcripts made available through other channels. What follows here are a series of audio files, which have been broken down from the main meeting for ease of listening, together with accompanying notes.

Agenda Faromet – Presentation (14 minutes)


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Slideshow created from images courtesy of Agenda Faromet

Tim Faith (26 minutes)

Tim provides an overview of the SL Bar Association, before going on to talk about his own background. He then discusses copyright law and the concept of moral rights, both with regards to the United States and the rest of the world, providing an overview of terms such as “original work” and “exclusive rights” in terms of copyright, some of the general limitations on copyright exclusivity, how creativity itself can generate exclusive rights. He explains some of the natural and unavoidable complications of dealing with copyright in Second Life due to the nature of the platform, where almost every interaction impinges on matters of copyright, and why both Second Life could not exist if exclusive rights were absolute and why exclusive rights are limited through the likes of fair use / natural expiration.

He then covers why most licences used within Internet-based services are two-way, and need to be, and how Second Life might be said to differ from other on-line services such as Facebook, due to the ability of users to conduct user-to-user business. Finally he explains why people need to understand what their rights under copyright are, and to understand what might be being signed-away in accepting any contract; statements like “I clicked without reading” aren’t a defence – the legal system isn’t going to coddle people for not knowing their rights.

Looking at the Law (8 minutes)

Agenda and Tim discuss concerns arising from the Section 2.3 call by Linden Lab to “otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof”, and the concerns that people have that this might allow the Lab to claim rights over such derivative works, whether or not they have been uploaded to Second Life. Includes a discussion unconscionability (procedural and substantive) and contracts of adhesion, and how they might apply to the ToS, together with and overview of changes to Californian law relating to arbitration agreements which may limit legal recourse.

Question and Answer Session

This has been broken into four parts for ease-of-listening. Questions for each part are given in text together with a times stamp for when they are asked / answered. Kylie Sabra substitutes for Juris Amat (who was unable to use voice) during the answers.

The Q&A session is split into four recordings, again for ease-of-listening. Each is given with the questions asked in the recording (and as entered into local chat during the meeting), so that readers can ascertain the order in which they’d like to listen to proceedings, should that have particular questions to which they’d like to hear answers.

Questions – Part 1 (23 minutes)

  • If the licence to LL stops being perpetual and irrevocable, wouldn’t that break  people’s inventories and even content?
  • Is the ToS an attempt to place all of LL’s services under one document? Is this wise, given Google’s failure to do the same?
  • Has anyone talked directly to Linden Lab about its desire to expand licensure to other virtual worlds explicitly?
  • Does this not seem like a preparatory move prior to some kind of large-scale shift, either part of an exit strategy, a selloff or transfer of content (such as from marketplace to Desura)?
  • Are these current terms not technically illegal from a federal and international perspective, if for no other reason than the agreement was done under a certain amount of duress?
  • [11:10] Why shouldn’t creators be freaked-out by the “sell / resell”? – Includes discussion of the Visual Artists Rights Act.
  • [21:12] Does the new TOS apply only to items uploaded after you agreed to it? Or all your items from before also?

Questions – Part 2 (20 minutes)

  • What if the “sell ,resell” thingie was put there intentionally…betraying Linden Labs actual plans…….to sell SL as it is?
  • How likely is this TOS to hold up under actual litigation based on precedence, etc?
  • With content creators having no choice but to accept the new TOS in order to log into Second Life. Are there still grounds for legal action if our content is used without the creator’s permission?
  • How is it they can apply this retroactively to content already created and uploaded prior to the new ToS?
  • Big issue I see is twofold: buying and selling work into and out of Second Life. I realize LL actually re-selling material is unlikely, but as with CGTech and Renderosity, most texture/etc providers do NOT allow Reselling. And many or most media publishers insist on buying some form of limited exclusive Rights to buy it at all, Which is no longer possible (?) under the changed ToS. One of the main strengths of SL was how well it facilitated Internet-wide business to business sake… how can the ToS changes be amended to protect this ability to build Internet-wide creative?

Questions – Part 3 (15 minutes 30)

  • I am a film maker and I use SL to make animations (machinima) for Children’s books and TV. On the old TOS all we needed to do was have the rights in writing from all the creators of the objects including avatars and the film would be my property to sell and use as I saw fit.   Can you tell me how does the new TOS affects me now, do I still have the same rights or are my rights compromised by Linden Labs claiming rights on my copyright  property?
  • What if we are located in a completely different country, such as Australia, what are the constraints and limitations and the effects of  agreeing to a US and California state Law, if we are in said places outside of the California / US?
  • (Two questions) What are our realistic, effective ways to make a case to Linden Lab? / If I as a creator wanted to REJECT the recent TOS, how could I remove LL’s rights to the TOS I refused to agree to? – Includes a discussion on trademarks.

Questions  – Part 4 (23 minutes)

  • I own a Breedable company. Doesn’t this TOS give LL rights to my Business Concept? and could they take a portion if I went?
  • How does ToS 2.3 affect a writer’s ability to collaborate on and peer-review works in second life without risking their ability to market their work exclusively or as first-refusal to publishers (or perform for that matter)?
  • (Two questions) Could you address the issues of what happens if the lab goes bankrupt or sells/M&A, with a perpetual license? What happens to  assets in the asset server on a pragmatic basis? / If this is a way for linden labs to put asset on their books to sell or to do an IPO, should not the co-owner of the right share the profits and or if they go with an IPO they get founders stock?
  • Even if this is all done for reasons like making providing their services easier and under the umbrella of one TOS and maybe even being able to operate coming services like SLShare, still why would they claim these rights for everything and not just for the purpose of operating these services, even the rights to sell and resell?
  • Does the permissions system built into Second Life set precedents in any ways that might affect interpretation of the TOS?
  • Does any of this affect content or copy written material that is not produced in Second Life, but that is advertised in Second Life? Talking about importing artwork or logos
  • Is there a resource for consumers which offers guidance and somewhat distilled information about the majority of social media that most of us use, for the purpose of assisting us to know what these TOS agreements are saying and how potentially unfair they are? Many of us use various social media to promote our art. Even some you mentioned, we may not have known about and presumably there are others which are problematic that we should know about? (one resource is VIPO)
  • The TOS refers to “YOU” which has stirred a lot of debate. IF one of my AVATARs agrees to the TOS and my others DO NOT… who is “YOU” the RL person or the scope of the Avatar? Can a creator work as IP owner through the agreed rights of another User’s avatar that did agree?

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17 thoughts on “ToS changes: Legal panel discussion – audio recordings and notes

  1. Gwyneth Llewelyn

    I usually have no time to watch videos and listen to audio (THREE HOURS!), while browsing through text just takes a couple of minutes. Those questions are quite to the point, so I’m eagerly awaiting the textual transcription of the answers :)

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    Reply
    1. Inara Pey Post author

      Transcribing the entire 3 hours is a major undertaking. Hence why I tried to break the audio into more manageable blocks.

      The original idea had been to timstamp each question so that you could scroll through the audio & listen to answers as required. Sadly, the WordPress audio player’s clock appears broken; it doesn’t count-out the time when listening to a track.

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  4. garvie garzo

    WOW Inara, thank you so much for that stunning amount of organization and work. I did listen to the audio on You Tube… twice in fact lol, but your post will certainly make it easier to scan back to who said what when about which… and hot links to legal terms.
    Honestly! we don’t pay you nearly enough, or even praise you enough. You provide a great service to the community.

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  5. Wolf Baginski

    It’s a bit of a problem for me to cope with, but one thing I noticed, fairly early on, is a couple of new clauses which the lawyers noticed, and seem to have slipped past the rest of us.

    Briefly, there’s a clause which gives Linden Labs the right to act as our agents to enforce IP rights. It’s superficially relevant to the general licence claim, but implies the possibility that they could act without asking us, and maybe send a DMCA notice to an OpenSim operator when we have legitimately uploaded content to both. What Agenda Faromet said was, essentially, she didn’t like the thought that the lawyer who wrote the ToS was acting as her agent.

    It’s one of those details which could be reasonable if they did ask first, but the rule is that it’s what’s in the contract which matters. And there’s nothing to stop them shooting first and asking questions later. It conjures up the image of a creator having to make a DMCA counter-notice in response to a DMCA-notice sent by their supposed agent. You would think that would settle things, but if I were running a public OpenSim instance the admin would cost me money.

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    1. Inara Pey Post author

      Yes, the Attorney-in-fact tends to cut both ways. It could work both for and against creators, depending on circumstance, and how the Lab behave. The OpenSim scenario you mention is one that had occurred to me as well.

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