Update, July 20th: My personal opinion on this update.

Update: For a legal view on this update, you might want to chack Vaki’s (also known as Agenda Faromet) blog post on these changes.

On Wednesday July 16th, Linden Lab updated section 2.3 of their Terms of Service and issued a blog post on the matter, indicating the update is an attempt to clarify the Lab’s intent with regards to user content in Second Life.

The changes to Section 2.3 come in the 5th paragraph, commencing “Except as otherwise described”. For ease of reference, I’ve reproduced the paragraph as it read in August 2013 and how it now reads in July 2014, with the updated text highlighted.

August 2013:

Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.”

July 2014*

Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and sell, re-sell or sublicense (through multiple levels)(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service), and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.”

(* Note that when initially issued the clause “sell, re-sell, sublicense (through multiple levels)” was accidentally repeated in the July 2014 version of the paragraph, a point I alerted the Lab to on reading the updated ToS, and which they subsequently fixed. The paragraph quoted above is the corrected one, with the repetition removed. So if you had to accept the ToS twice, that’s the reason.)

While this may be an attempt to clarify the meaning and intent of the ToS, I cannot help but question it’s overall effectiveness – although I do so with the clear statement that I am not a lawyer, so this is simply unqualified opinion.

Yes, the revised wording does apparently set out limitations, but the context in which this is achieved seems to be confusing.

Agenda Faromet explained during the Legal Panel discussion on the matter in October 2013 as to why terms such as “sell / resell” aren’t perhaps the issue in a legal context (see her comments here), but the lack of limitations on any assigned right are. Yet, within the revised ToS, the way in which the limitations are presented parenthetically might be taken to mean they only apply to the matter of “sell, resell or sublicense (through multiple levels)”.

Moreover, the limits as stated, would appear to stand in contradiction with a further clause in the ToS which was introduced with the August 2013 changes, and remain unaltered with this update. To wit: that LL can “otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever”. Hence, to the untutored eye, it is actually hard to discern what the Lab is in fact saying with this update, or what they are actually addressing.

Whether this apparent contradiction, if it is a contradiction, affects how the update might be legally interpreted, I leave for minds wiser and better qualified than mine. But given the wording “for any purpose whatsoever” with regards to how SL content might be used did give rise to considerable angst when it first appeared in the August 2013 ToS, I do wonder if its continued presence will remain a cause for concern among content creators.

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