Thursday, April 22, 2010

Second Life Terms Of Service Changes

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?

This seems to be Linden Labs way of placing, not just control, but responsibility in the hands of residents, and to some extent it's a progressive movement. In other areas it seems far to broad. You have independent content creators numbering in the hundreds of thousands. After April 30th do they release under a common license? Or no license at all? Must each and every one of them drawn up their own EULA (End Use License Agreement) so we know whether or not we can take a photo of ourselves or film ourselves in their content. It puts the content creators in as much a crux as it does the Machinimatographers. I've made clothing, but I don't have a lawyer, how do I state that the content I've made can be used freely in media efforts? Since they don't provide you with legal advice, must we all visit to figure out how to draw up our own terms of use or licensing to assign to our content? I'm not a lawyer, how can I make sure my License is sufficient, or will stand in a court of law if violated? How can I make sure my license covers more than just a virtual Rule-set and encompasses Real Life too? What If I want to limit my content to specific things, such as films that maintain only a PG rating? How far does my new licensing abilities go?

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?

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spyvspyaeon said...

"You must obtain a license or permission of the creator said before, including the content in their production." But this is a squat, I can not even imagine what it would seek permission to everything and someone else (not knowing how to become official this permission) on the props of an avatar, perhaps also refers to the shape and skin. Amid the hype, which considers the widespread exaggeration (out of context and comparison with real life) but leaves it in words no doubt a practical sense. Still want to express that although the ethical point of view, even respectful is well prepared. But perhaps needs to be further delineation of its borders when it got to the point of comparing with the RL, ah because RL is out of control, but the second life can spice up "eccentric". Maybe this is a reflection of many complaints from residents, I Linden labs to a "run" in the control of a scrappy disproportionate unease. Sorry but I find it a little too much although I think that is right.

Russell Boyd said...

When residents agree to the new ToS, they effectively give machinimatographers a licence to use any content they created "You may take snapshots and capture machinima of the 3D content we created that is displayed in-world", so we don't need to get the content creator's permission, we already have it as such.

Only in the cases where the content creator has already established trademark, publicity, etc rights, do we need to get permission e.g. like the SL tradamark, or Nike, or Pepsi, etc. Apart from that we are good to go.

PS I'm not a lawyer, this is only my interpretation, always be sure for yourself :)

Anonymous said...

funny. everyone reads the new tos and policies different and most wrong.

reality is that creators should be paid for work thats commercially used. period. by anyone. be it LL or a logger in.

spyvspyaeon said...

Russell in fact when I mentioned the principle of contradiction was just talking about the latest announcement from LL about the promotion that make for machinima and effort they have made to meet the expectations of residents, but the TOS (although several interpretations because the TOS has been done so and not the fault of the residents in the gaps and contradictions by what is said and what is done "behind"). Although Linden Labs implement these regulations only to his world (of course you can control) and not even being able to tamper with the 3rd party, this seems contradictory with regard to the "big launch of LL" with its shared media. I am not knowledgeable of the laws in their entirety or have any training in legal rights, or rights to content IP, but in fact the new TOS has many doubts and few clarifications, overflows a little overzealous and impartiality, the TOS was not clear how a exclusive LL put his hand on you think its entirely, and in fact declares itself TOS. "Everything here is after all our pups are well understand." Although leaving my reservations to criticize such a declaration, "perhaps totalitarian" who leaves behind even before trying hard to make a job fair in Media Content and respectful of others. If in fact LL is clearly clean hands and any possible conflict in the future, yes, "Changing the terms of service is the normal course of business, but I'm not sure That springing on Them people is the best approach, Particularly When there are at Easily accessible ways to Evaluate the scope and / or the nature of the changes and most es-When people are deriving tangible value (ie income) based on the previous agreement. ". Second Life Has Been previously defined as a service, and all it matter to economy, but its economy is not in agreement contemplates the possible movements of new media, in fact Machinima made in Second Life has never been so close to being a truly recognized ART, or expression of virtual reality (virtual attention, despite notions of intellectual property, it seems stupid to label us property is yours until I want ") and in fact to challenge the boundaries of what is already known to the metaverse to real life with the use of Machinima in commercial terms. I personally do not believe that Linden wants to throw the dirty dishes to the residents ate and where I hope the lack of clarity is a strategy to mask the true intentions of the LL. Like Phaylen says, let's see what happens this. I just let a strong critic of LL and his blog that one day open a post for clarification on the following day is closed, in fact a rude way to say that we have not really vote on the matter, or to say so and there to give back. It is sad to see things well placed is depressing even thinking about what the future may hold more and more restrictions unfounded and clarified that the residents that we've created is crap anyway they can in order to tell whether it is in their interest . Is this sustainable or is this an attempt to approach the LL TOS WoW and other worlds with restricted content ....

I think frankly this attitude completely unreasonable and disproportionate when we are talking about a world virtual, that as the word says it is all nothing more than a potentiality. I understand and accept the terms in relation to the Trademark, however completely escapes me why a Land (PUBLIC) requires permission from the owner .. .... or is public or not. Maybe in quick reflection, the ideal would be that the entire contents of whatever should be protected DMCA and the like, should be separated from what we call public areas.

Copying is one thing, now filming and taking pictures is quite different than copy content? Sorry but my notion of property is as dumb as the statements of LL or how they are put to us without infringing the intellectual property of the adversarial principle.

Poid Mahovlich said...

The ToS itself identifies the use of the term "we" as Linden Lab, and gives explicit instructions in the machinima and snapshot policy as to what is allowed and what isn't. However, the ToS definition of resident created content is "User Content" Which is referenced in no way on the policy, so by that understanding, there is no need to worry about user created content being filmed, and no permission is needed (it's a nice thing to do, but not necessary), as the Linden Policy makes no mention over what should happen in regard to "User Content", as referenced explicitly as such in the ToS.

To sum up the definitions in the policy do not correspond to the definitions in the Tos making it unclear. I interrupt this 1 of 3 ways.

1. LL have been sloppy in policy wording
2. LL has not taken ‘user content’ into account.
3. The content in the policy bears nothing in common with the definitions within the Tos and the Tos is the actual legal binding contract. However the Tos did not mention machinima or photography. The policy is an adjunct to the Tos – which attempts to give more details but does not actually mention the ‘user content’ within a legal framework.

What I am saying is the Tos references definitions that do not exist in the policy so therefore the policy is lacking in giving good and meaningful guidance – which is tern is allowing for misinterpretations.

Personally it’s confusing me – I am not a lawyer. Either this will be clarified by LL or we as machinima makers and photographers run some degree of risk if we do not fully understand the implications of not following the guidelines/ policy/ Tos.

From Tos and Linden Lab Official: Intellectual Property.

1. Copyright Licenses.
- As long as you comply with the terms and conditions below, both Linden Lab and the Residents of Second Life (collectively, “we”) grant you the following copyright licenses:

4. Definitions.
(a) “3D content” means any objects, primitives, or other creative works or works of authorship that are three dimensional.

Russell Boyd said...

"we" is defined as LL and the residents:

"both Linden Lab and the Residents of Second Life (collectively, “we”)"

So residents are giving the licence when they agree to the new ToS.

spyvspyaeon said...

What bothers me is that the lack of clarity on the issue of ownership, after all, it is clear that Snapshot_and_machinima_policy gives a real perspective, I fully accept some points, after the platform is theirs, but the process can not be seen otherwise? How about the TOS contemplate that automatically recognizes the Linden Labs terms in certain pass your license for developers and creators of derivative works. But does this process has to pass entirely through our hands? Besides thinking that it becomes complex to transfer licenses from one to another, it seems those offices filled with paper and excessive bureaucracy.
Maybe I'm do not like to see changes even more complex. After the property is whose? Both ours, theirs? Confused? me too. Should be laws that are behind, as I said in law, I understand little.

But it all made sense up until the moment I read this pdf, Shared by Grace McDunnough's post "The Second Life Tipping Point"

"While the Second Life web site speaks of land ownership, the Terms of Service
make mention of ownership in, nor Do They mention land. The greatest right That the
Terms applaud to give users the license is right, But it is not even clear That They grant the
license to use Second Life land. Second Life members are Granted a license to "use the
Linden Software and the rest of the Service. "83 The" service "is defined to the servers,
software, application program interfaces, and websites.84 It is not clear That the land is
part of the Service, in fact-, two Paragraphs later, the Terms of Service defines the graphics
the "Content." 85 Later, the state Terms That nothing in the Terms of Service or Linden's
websites grant any rights in any Content.86 When a member acquires Second Life land
with the purpose of building something on it, Clearly That That member thinks he is
acquiring rights in something. The website Indicates That the member is buying "land"
But the Terms of Service grant nothing to applaud. "By Juliet M. Moringiello

something here is not clear...

spyvspyaeon said...

This worries me because the concept and definition of property must be entirely clear and correct, that the transfers of licenses are well within the legal framework

ColeMarie Soleil said...

I am not really worried to be honest. Just ask permission from people when using their creations or sims. Everyone's been pretty nice to me about it. Anyhow just my two cents. :X

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