As many of you reading this blog post already know, in the weeks that have followed Linden Lab's (aka LL) August 15th, 2013 Terms Of Service (TOS) changes, there has been an explosion of concerns by the community of SecondLife® (aka SL)  Content Creators regarding their IP rights safety as well as even the legality of uploading content into the SL grid. 

This concern was initially sparked when one of the major sources of content (CG Textures) used by SL ontent creators placed a ban on their content being uploaded into the SL grid.  Since then, another content source (Renderosity) has joined the chorus of external content sites concerned about the Aug 15 LL TOS changes.  They also banned any uploading of their content into the SL grid.  As word about the LL TOS change (in particular section 2.3) spread among the SL content creators community (aka SL-CCC), the magnitude and scope of the concerns being expressed by this community can best be described as explosive and growing fast. 

The SL-CCC is a large fabric of SL residents who spend a known portion of their time either creating & uploading content into the SL grid (i.e. creators of textures, mesh, sculpties, music, copyright text, music, multi-media, etc.) for use across the SL grid, or, residents that tightly integrate with these creators on the grid (i.e. Merchants, Mall Owners, Art Curators, Venue Owners, etc.).  For the most part the SL-CCC is made up of two unique communities: the creators of commercial content (merchants) and the creators of artistic content (Artists, Poets, Musicians).  Generally these two communities don't often mingle.  But, because of this recent serious concern on the SL-CCC's IP rights being hi-jacked or the rights of those whom these up-loaders have been licensed to upload into SL being infringed, there has been a common merging of expressed revolt against LL on their recent LL TOS change.

Although there has been a significant and growing concern about this LL TOS issue, the communities realized there was no tangible view of what the SL-CCC members were aware of, concerned about, and would like addressed.  As such, to get a snapshot of these views, I (Toysoldier Thor) decided to develop a quick & dirty survey (using the free limited function features of Survey Monkey) to ask the SL-CCC member 6 questions.

Each of the questions allowed one answer of the options provided as well as an OTHER box.  Unfortunately due to an error during survey development, I failed to enable an option that let respondents select OTHER as an option.  As such, many respondents expressed "other" in the text box after selecting an option closest to what they were thinking.  Also, I say quick and dirty as this survey was limited in max responses of 100.  We reached that limit in less than 24 hours.  At the time of this blog, the total respondents was up to 134 but to see all respondents would cost me $20 and I don't think it would have dramatically changed the trends being seen.

So without further delay, here are the results from the 6 questions as answered by the first 100 SL-CCC respondents.
Observation on Question #1:  Clearly, the message about the Aug 15th TOS change and specifically Section 2.3 which contains the wording changes most troubling to the SL-CCC has got out since 83% of the 100 respondents felt they were aware or very aware of section 2.3 of the latest TOS.  Of course this survey was promoted out through the SL forum threads as well as several participating members of these threads.  This naturally created awareness.  If this survey was posted in general to the SL residents, these numbers would likely be different.
Observation on Question #2:  To gauge if there was consensus among the SL-CCC members on where they stood regarding their comfort on their rights being protected before or after the Aug 15th TOS changes, the results were very clear from the first 100 respondents. The vast majority felt they have become far less comfortable that their IP rights are safe after the Aug 15th TOS changes.  Also, NO RESPONDENT felt their IP rights were more safe after the TOS change.

There were also 3 "OTHER" responses among the 100 as well as 3 additional that I could see after the 100 limit.  They were recorded as:
  1. I believe that provision to be unenforcable.  See answer to last question.
  2. My rights are unaffected by the change as Section 2.3 specifies granting LL "non-exclusive rights". As such, this question is irrelevant
  3. this TOS is an industry standard in my opinion and nothing to be overly concerned about
  4. Speciifically about the LL right to alter and distribute even outside of SL without the creators consent or even
    knowledge
  5. Due to the TOS change I am not building new items for sale nor uploading anything for same.
  6. i couldnt give a shit, i think you are all over reacting
Observation on Question #3:  When asked how respondent's creation operations changing in response to their concerns about the LL's TOS changes, 39% of the respondents have put SL Content Creation & Uploading on hold until they see LL correct the TOS issue.  Another 20% believe LL will step up and fix the TOS wording so they continue to create but are holding back on uploading.  Another 25% of respondents are concerned enough / frustrated enough that they are pulling out their content from the SL grid and 1/2 of these respondents don't plan on returning.

There were a lot of "other" comments as many of these respondents wanted to clarify their position.  Here are the responses:

  1. THE ABOVE ANSWER TO THIS QUESTION DOES NOT REFLECT MY TRUE RESPONSE. "Other" was not a valid answer to the quiz. I'm very concerned, but I have not changed my uploading habits. I am not a professional content creator. I am an IP attorney.
  2. I'm quite concerned but I can't just stop working because of it
  3. I continue to create because I have fees to pay, but I'm not happy with this TOS
  4. I am proceeding with caution as I believe that provision to be unenforcable. See answer to last question
  5. The options in this question are biased and far too narrow in scope
  6. I am not currently creating, but would not be inspired to do so until this was changed or corrected
  7. this TOS is an industry standard in my opinion. LL is not going to take my content and sell it etc. I don't believe that's what is happening here at all.
  8. OTHER: I still create and upload but only for my use, not for business purposes
  9. i will create content now - even upload to SL but i am holding back on uploading the larger more complicated work till there is some development in this
  10. Other (I will upload but obviousaly not anything to important to me.)
  11. I'm VERY concerned but have left current content on the MP but not creating anything new.
  12. I'm very concerned and still in doubt wether to continue my business in SL or not
  13. Other - its been at least 2 years since i decided to make all my own content and make it portable. if i feel in anyway threatened i will simply use it on other grids
  14. the is a busy time of year for me in sl and make most of my money so until after christmas i will continue to built in sl etc
  15. Very Concerned - But cannot afford to stop creating content due to RL mortgage needing to be paid. Am looking at options depending on outcome.
  16. I am creating and will upload SOME things but not all and I am concerned
  17. I'm aware and very dubious, but I have continued to upload to keep my business going - I just hope they change the TOS soon.
  18. cant you see this is just so that LL can sell SL & it's data on the servers to another company.... that other company might invest & give us better customer service, this could be awesome.... LL are never going to be selling on people's stuff individually... get over it allready
  19. I'm concerned, but continue to create. I'm especially concerned that outside Second Life content sources are prohibiting downloading their content into SL due to the new TOS wording
  20. I been uploading but just for custom orders i had from before august
  21. I'm not sure how this will affect me yet, but I'm mildly concerned.
  22. im worried, but i have commintments for now, so i keep creating for respecting those commintments
  23. Actually, I'm very concerned - mostly because I legally purchase licenses for merchant resources in order to create my end products for SL. Since TOS cannot be retroactive unless it is formally stated (which it is not), I will only be using existing content and modifying that to keep afloat until LL changes the TOS back to the pre-Aug 15 wording regarding for use on the service only.
Observation on Question #4:  To gauge what respondents felt would be the impact on the SL grid and its future if LL did not fix the TOS issue on section 2.3, almost 50% felt the impacts would end up being significant.  An additional 32% believed this would potentially kill the SL grid because of how the new TOS rules would scare off content creators.

There were also several OTHER comments provided to by residents to clarify their position. These were:

  1. I believe this indicates that SL is being lined up to be sold off, my confidence in the service is shaken
  2. If the status quo is maintained, no. But if they take someones creations and use it for profit without consent and compensation I believe most creators would stop making content and a class action law suit would follow.
  3. However, I think some content creators may misunderstand and potentially leave for less-developed places that probably have similar TOS - or will very soon
  4. This move indicates a further preparation by LL for an exit strategy.
  5. Other - for the average resident probably little or no change
  6. SL will survive, but the only quality content will be stolen.
  7. It will only change because of people's paranoia.
  8. If all the content creators become aware of exactly what this means, it could be detrimental to SL. But as with most things like this, most either aren't aware at all, or they think it's "no big deal", in which case it won't likely be that drastic of a change.
  9. BUT only because you are all over reacting to it!!!!! ohh and by the way you are making it worse with this survey, scaring everybody shitless
  10. I wouldn't go so far as to say that it will kill SL, or even affect it all that much - there have been a lot of major changes over the course of SL's history - but it all depends on how LL deals with it.
  11. Either the honest creators will leave and wash their hands of SL, which would devastate the grid, OR, only those who don't care about TOS (the rippers and IP infringers who currently flood the MP and grid with merchandise that is not legally theirs to sell) will stay. If new content in SL consists primarily of this type of illegal merchandise, LL's allowing this practice to continue won't be under the radar any longer. It will be front and center and they can kiss any hopes of expansion of the grid, or any other virtual product goodbye.
  12. Huge volume of already infringing content means change is unlikely

Observation on Question #5:  When respondents were asked how they would like to see LL step up and address their concerns about the TOS changes, there were 3 general flavors of responses available:  1) Do nothing,  2) Change it quietly,  3) apologize formally and change it.  The clear majority of respondents - 75% - believed that not only should LL fix the TOS wording to address their IP rights concerns but they need to publicly admit they made a mistake and announce they were correcting the problem.  This is likely a belief because the creators feel that LL needs to send a message out to calm the waters and assure creators and external content libraries that they acknowledge their error and have corrected it.

A slight majority felt that LL should revise the current TOS vs. those that felt LL should just restore the wording from the previous editions of the TOS.

There were several OTHER comments to this question as well a posted below:

  1. Revise the TOS to make it conform to contract law. See answer to last question.
  2. Only one phrase requires revision within Section 2.3
  3. I think LL needs to address what this TOS means and even more importantly what it does *NOT* mean. I think more than anything this is something that better communication could have avoided and could still heal. LL ought to have better public relations with the user community. There needs to be reasoned communication and discussion on this topic, not the one-sided shouting matches that have been occurring. I think that some who are most upset by this are actually misinterpreting the TOS. e.g., "LL is going to steal my creations," "LL is going to sell my creations," "LL won't let me upload licensed or open source content," etc. (And your survey needs a more unbiased answer choice for this question. I will select "Nothing - they changed their TOS and its [sic] over..." but the real answer for me is that LL needs to have better relations & better communication with its user communities.)
  4. dont have to be publicly - just change the wording to not claim right on content they did not make and release a new TOS
  5. Also explain the reason for change.
  6. Formally and publically acknowledge the TOS wording was poorly chosen and ill advised then revise the TOS with input from community to something that both LL and community agree is in the best interest of IP, creators and SL.
  7. it does need rewording, but i am happy for them to be able to sell SL on to a 3rd party
  8. I can understand that there is a concern by LL and they felt the need to revise the TOS, but I want the wording and intent to alleviate the concerns of outside and internal Second Life content sources and creators, so they are assured they have sole rights to their work.
  9. Either they should revise the policy and explain what they were thinking when they made which seems like such a blunder. The alternative is to be honest about why the company needs to make the change. I can not imagine any positive reason for users. Mostly I can imagine reasons such as preparing to sell the company, possibly also not good for users, especially content creators.
  10. LL should offer an explanation, but I'm not sure that they need to apologize, except for not making it clear what had changed when they made the change to begin with. It would be amazing if they changed the wording to include their intent, but I honestly doubt they would do it.
  11. Fire Rodvick, formally apologize to SL residents with promise this kind of TOS wording will never occur again
  12. Just put it back to the way it was before. I don't care about grandstanding and public apologies - I'm sure the bloggers will take care of that...
Observation on Question #6:  This last question was just a "personal opinion" question to the respondents.  It was not trying to calculate the legal standing of the TOS if brought in front of a court of law.  It was just to gauge the respondent's feeling on how viable the TOS was legally and where they felt the legal weaknesses of the TOS would be if it were to fail in court.  Most provided an opinion - 12% did not.  Those that did, there were an overwhelming opinion that LL's TOS would lose for many reasons if ever challenged in court.

That being said, there were also a lot of OTHER comments to this question as posted below:

  1. LL's ToS will not be challenged in a court of law. The arbitration clause will prevent that.
  2. I am not a lawyer so I do not know what the outcome would be, I just picked the answer I did so I could answer here.
  3. The TOS is a contract. Contract law specifically requires five requirements for a contract to be valid and enforceable. One is consideration. That is why a contracts specifically say "for $1 and other valuable considerations.... " They may think that being allowed to use SL is the consideration BUT the wording in that provision specifically says that there is no consideration thereby rending that provision unenforceable. I believe someone harmed could sue LL and win because of this. As far as waiving rights to sue, basically if LL enters into an agreement to perform an illegal act, this would not constitute a legal contract and the waiver is also unenforceable. LL's lawyers need to go back to law school. See this for the 5 requirements and explanation of each: http://smallbusiness.chron.com/5-requirements-contract-15616.html
  4. A completely irrelevant question which has no bearing in trying to persuade Linden Lab to correct a poorly-worded section within the ToS. Any answers can only be subjective in nature, as only those with a reasonable understanding of Tort Law, the history of holding to date when the ToS has been before a judge, and all limitations and caveats placed against those holdings.
  5. It's probably not wrong legally, but very customer unfriendly
  6. Other opinion: As a non-lawyer, I have no basis for an opinion. This is a meaningless question.
  7. I am not a media lawyer nor are 99.9% of the people commenting on this issue. However, I believe the TOS would indeed be upheld. It is an industry standard for user-created content sites such as Youtube, Facebook, etc. Please take a close look at the TOS for Youtube, Twitter, Facebook etc. They are the same, and ascribe to the company the same types of rights over user-created content. From what I've seen, LL's TOS actually ascribes *more* rights to *content creators* than some of these others.
  8. ToS are rarely enforceable, period.
  9. I am no lawyer
  10. LL did not inform users of the change in TOS before changing the TOS, thus permitting users to remove content before the current TOS went into effect.
  11. every single one of us your agreed to the update,, also by clicking yes,, our e-signature is there and,, well a binding contract.. can that be reversed? I hope so..
  12. I have no idea
  13. no idea
  14. Other It would win in the vast majority because most people cannot afford to sue someone.
  15. No Idea-not a lawyer
  16. Other - but no one will challenge it publicly:) we've seen that before. stuff gets settled
  17. Assuming anyone has the funds and time to challenge them.
  18. not sure
  19. LL would lose a COPYRIGHT/IP case if they attempted to grab user-created content, but I don't believe that LL is gearing up to do that.
  20. i have no opinion on this
  21. I don't have legal knowledge to back up any personal opinion in this area.
  22. Unsure
  23. No idea. I'm not a lawyer
  24. No idea until it is tested in a court. I'm not a lawyer. I can only react to this as a content creator and how best to protect my work, as well as the resources I purchase licenses to use - I abide by those licenses and am therefore unable to transfer that license to LL (even if I wanted to which I don't).


CONCLUSIONS:
I want to point out again that this was a quick and dirty 100 max respondents survey to gain a general sense of the thoughts of the SL-CCC membership.  As it is only 100 respondents, the sampling is very small and does not necessarily reflect the feelings, thoughts, opinions of the entire population.  

But, there are some strong trends shown that indicate some consensus of where the creators of SL stand.  I hope this helps in the discussion and also begins to show to LL that its population of creators that make SecondLife what it is... are not happy with the recent TOS change - regardless of what LL's explanation has been via informal non-binding communications to the community.
Natasha
10/25/2013 12:57:11 pm

Linden Lab is pretty dumb for this what they do not understand is that the (CopyBot) Completely in my eyes Cripple the entire grid. Then we had CDS, Red Zone, completely destroy the grid by data mine, spyware and so on. Yes I know this is a bit unrelated, but it caused a lot of people to just want to quit Second Life.

Now the new threat, is this new TOS that Linden Lab stupidly released taking away the rights from all the fellow merchants I grew to Love in Second Life, what if a merchant does not agree and wants all their data deleted from the grid instead of being used by Linden Lab, what about all the weapon, and clothing designers I love what will become of them like 3 major merchants I know of have quit the grid some due to CopyBot, others likely to this.

To make things worse I quit Second Life except for my Estates I rent to others at GF pricing because of the Security Linden Lab has, my account got Hacked and when LL was notified less than 24 hours they failed to recover any inventory, all asset data completely wiped why? Because they keep no back-up, and should any view you ever use off the TPV site ever become compromised and someone do this to you goodbye Second Life inventory. You see a lot of the merchants I bought stuff from no longer exist in Second Life, sure data still on LL’s servers I just can’t legally access it anymore because the assets are no longer in my inventory.

But you want to know a secret its possible for LL to restore anyone’s data they just refuse to.

“Second Life has run its time, but I fear it is done for, Second Life needs new management, and better security.”

And you want to know the Truth, my World OF Warcraft account has better account security than Linden Lab which has direct access to you’re bank accounts, PayPal, and so on when put on file, isn’t that just pathetic?

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