On March 30th, Linden Lab, the makers of Second Life, made some substantial changes to their official Terms Of Service that have a strong effect in many areas of in-world activities - including Machinima and Photography. Some believe these changes are simply common sense courtesy, while others claim that TOS 2.0 is disabling the creative pool with their rules, which appear laden with gray areas.
Section (B) of the Licensing Policy says the following:
"For machinima, you must have the consent of all Residents whose avatars or Second Life names are featured or recognizable in the machinima. This includes avatars who are featured in a shot, avatars whose names are legible, and avatars whose appearance is sufficiently distinctive that they are recognizable by members of the Second Life community. Consent is not required if an avatar is not recognizable and is merely part of a crowd scene or shown in a fleeting background. Consent is not required for any snapshots."
Now for you professional machinimatographers, this has always been standard anyway, especially in a world that has become very DMCA-centric over the past few years. However, those new to the field of Machinima who enjoy going to concerts and filming performances or to other events may be well served with reading this carefully. Those who attend and film speeches or large scale events with a keynote speaker, that would be considered a "Featured" role and consent is required. In contrast, a audience member in the back row with the beer cans on his head is not considered featured if his Avatar name is not visible in your frame.
Fairly cut and dry, yes? So far, so good.
However, the part of TOS 2.0 that has the many people from the Film and Photography world a bit frenzied is the following section:
"It’s important to remember that the Licenses are only copyright licenses for the 3D content we created that is displayed in-world. They do not include any permission to use the trademarks of Linden Lab or Residents, and they do not give any copyright permission to use music or sound recordings that may be performed in-world. They also do not give any copyright permission to use any website or video content that may be streamed from outside the Second Life virtual world environment.
If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.
For general information on intellectual property, please see our Intellectual Property Policy. If you seek legal advice about a specific situation, we suggest contacting a lawyer. Linden Lab cannot provide you with legal advice."
Prior to TOS 2.0, many Machinimatographers felt that they were completely within their rights to film content they had purchased from creators. Things such as Animations, clothing, buildings or sets, props, hair, skin or attachments. In Linden Lab's new TOS 2.0, they explicitly state that it's okay to use their own content, but if you incorporate content from other users, you must obtain licensing or permissions from the creator before including said content in your production.
This is the part that seemed dreadfully vague. Some residents believe that this only applies to content creators who have established legally trademarked brands, or corporates in Second Life who maintain real world identities. Others think that it is more similar to real life, where you wouldn't have to seek permission for, or license the use of every article of clothing you wear.
But, we aren't in the world. Creators in Second Life are notoriously protective of their content and rightfully so given how vulnerable they've been to merciless acts of theft for years now. There is someone out there in the metaverse solely responsible for creating every pixel rendered - even if just a T-Shirt, and with the push of TOS 2.0, they are entitled to a say in how that is used. It wasn't a T-Shirt mass produced in a factory in Taiwan. Same with skins associated with a brand, everything down to your shoes is apparently subject to a necessity of license.
This portion of the TOS does not define what constitutes fair use, or what licensing a purchase grants the consumer. While it states that Trademarked items are off limits without permission, it also goes on to include those with a service mark, trade dress, publicity rights, or other intellectual property or proprietary rights. Second Life has always claimed that you, the content creator, own what you make. So a fair presumption would be that virtually everything (Or, everything virtual) falls under that guideline.
The positive element in all this is, undeniably, is it puts more control in the hands of the content creators with regard to how their content is used by third parties - that being you and me. I've long been an advocate for the rights of our content makers in Second Life - after all, they are responsible for having created our world, and for a long time they've been grossly unprotected from the maligning acts of others. But, with the implementation of TOS 2.0, it has left many people from a different creative pool quite perplexed.
How will licensing work? Do we have to go to each individual content creator and solicit written permission for everything shown in film? Will Linden Lab incorporate a new feature on creation, along with the ticks for copy/modify/transfer, to include media allowances? We live in a world that has a bottom-line dollar definition - it's largely about money for many creators who are trying to supplement their real life incomes, so will purchasing a licensed version of an item cost customers more?
As a machinimatographer myself, I can tell you that I make my films on a shoestring budget, if any budget at all. And, like many of you, I have no sponsors, no financiers, and do not sell commercial advertising. I have never made any money from my filmed content. Am I to presume that I will have to now set aside budgets for licensing everything I use? While my work hasn't ever really gone mainstream, what if someone created something that received viral status or attention from a mainstream studio? Many people are simply fine with content that is non-commercial, but let's face it, most of us in the Machinima industry are non-commercial by circumstance, not by choice. If suddenly a video went viral and a major studio wanted to pay them to screen it - would that change the licensing from virtual to real? Having to pay extraordinary licensing fees for every article and item that appears in a machinima you make could potentially cost more than it's worth. Can production of films remain practical in cost?
The whole thing really sends one into a downward spiral of chaos and confusion because no implementations have been in effect. There's no one standing at the helm saying "This is how it works, this is how to do it." Second Life is a not a world where "Please" and "Thank you" are good enough anymore, so what act constitutes a license if not the act of purchasing? Verbal agreements are far to disputable, and many machinimists are as notoriously protective of their work as content creators, and not likely to hand over editorial control or limit what they can do after completion because they used something that comes with a clause. For many of us, using copyrighted music has always been a big No-No... if used, we couldn't maintain full control over our work, we couldn't commercialize it if the opportunity arose, and we had to operate within very stringent limitations. Do we now approach in-world content with the same mindset?
As Second Life moves at light speed toward mimicking the real world in every shape and form, we find ourselves facing the very same trials and tribulations as we do in the first life. It is not reaching for one to wonder if Second Life is becoming too much like first life.
Linden Lab set a precedence when they gave the users ownership of their own intellectual properties. It was a groundbreaking movement and now I wonder if it hasn't created more of a headache for them than a true benefit. With lawsuits popping up like flowers on a Parade float, it appears they are eager to quickly get any possible liability or responsibility they have to their residents out of their hands and place it directly into the hands of their users so disputes do not fall onto their doorstep anymore. But are they going to far? Is it logical, today, on the internet, where everyone operates beneath a veil of anonymity? Is it fair to the users to feel set at sea without a sail? Is it practical to put us at the mercy of each other when greater threats loom?
From my perspective here, it seemed that far more stress should have been put on content thieves and those inhibiting the business behaviors of our dear content creators than on those who just want to make a movie or take a snapshot. While appearing to give our content creators more control, the manifest of TOS 2.0 still does nothing to protect them from content theft. It does not employ or detail any forms of action that can be taken or ways to protect themselves before the onset of an instance. Would including a license stop someone with malicious intent? No.
TOS 2.0 seems to have deflected attention from their inadequacies with regard to action taken against thievery and focus instead on how we, legitimate, law abiding residents, interact with each other. 2.0 sounds pretty on the page, but in fact creates enormous amounts of research and work for all parties involved; the content creators, and their customers.
TOS 2.0 goes into effect on April 30th. Are you ready?
Phaylen's Official Blog
Follow Phaylen on Twitter!