Linden Lab whiffs the ToS again

Today, Linden Lab announced with great glee that, just short of a year after its extremely controversial and overbroad August 2013 Terms of Service update, it has finally “clarified” the offending clause, as a sign of how seriously it “respects the proprietary rights of Second Life’s content creators.”

So let’s look at how deep that respect goes — let’s look at this change that took a year for Linden Lab to effect.

What changed?

Sec 2.3

They moved “sell, re-sell, or sublicense (through multiple levels)” from the beginning of the list to the end of the list. And then they added a totally unclear parenthetical: “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)”.

That is all.

That is what’s prompting their big pat-themselves-on-the-back post up there.

So…there are a couple of really problematic things here, and I’m still trying to be clear about what this very small change does.

Reordering the list

You still grant Linden Lab the following rights, and they are still perpetual and irrevocable:

Rights

It doesn’t matter what order they’re in. It’s still the same bundle of rights you’re granting Linden Lab.

Unless…..

The limiting parenthetical

I have an English degree. I’m a grammar nerd.  It comes in handy when writing things that have to be clear. One of the things you don’t do when seeking clarity in writing is string together a big long list and then tack on a phrase that could apply to one item on the list or all items on the list.

And here’s the problem: the “(through multiple levels)” parenthetical only applies to “sublicense.” It means that LL can extend these rights to third parties through many different levels of licensing agreements (in other words, LL may have an agreement with a hosting provider, and it may have an agreement with a peering provider, and LL may need to pass some permissions through to all of them).

By changing the order of “sell, re-sell, and sublicense (through multiple levels)” and then putting the limiting parenthetical after those words, Linden Lab has done a great job of making it look like that parenthetical only applies to “sublicense,” or at best to “sell, re-sell, and sublicense.”

In other words, it looks like the Terms of Service is exactly as bad as it always was, but Linden Lab can only sublicense your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.” At best, it can only sell or resell your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.”

The latter seems to be the interpretation Linden Lab is insinuating in its blog post, but there’s nothing in the phrasing here that indicates that this limitation actually applies to “sell” or “re-sell,” much less to all of the other permissions that come before them. It seems to me that if the limitation does apply to “sell” or “re-sell,” it should also apply to all of the permissions…but it isn’t written that way, and Linden Lab’s blog post doesn’t sound as if they’re interpreting it that way.

It sounds like it can still do all that other stuff, without limitation.

What about derivative works?

One of the biggest questions that came up about the Terms of Service change last year was the part right after this new alteration, the part that reads: “…or exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof)….”

This has not changed.

This limitation, whatever it means, does not affect derivative works of your User Content.

(Side note: I still don’t think Linden Lab actually has a valid claim to non-SL derivative works of most user content, regardless of what its atrociously-written ToS says, but I’m certain no one wants to go to court to test my theory).

The short version

Really, not much has changed as of today. We have a poorly-written, overly broad ToS without much in the way of limitations, and we have a whole lot of reassurances from LL that don’t mean a lot (other than serving as an indication that their legal department is apparently not very good at translating the company’s intentions into legal terms). I had an ambivalent opinion of whoever Linden Lab had hired to write their Terms of Service before. After today, it has not improved. It took LL a year to come up with this much. I don’t have high hopes on getting a revision any time soon.

Good luck.

 

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About Vaki

Seriously, Mega Shark v. Giant Octopus is a masterpiece of modern cinema. What? It has Deborah Gibson in it. And there's this one scene where...what? Oh, like there's something better than a mega shark leaping out of the ocean and biting a plane in half. Whatever.
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