May 5, 2009

Context Matters, Copyright and “full permissions”

Posted in Musings at 5:04 pm by zhaewry

Context matters

 

I am not a lawyer, and this verges on lawyerdom, so… please don’t take it as legal advice, but take it as a simple exercise in pointing out what, in many ways, should be obvious.

 Words and phrases rarely convey their full meaning without a context. “Full permissions” as used casually, by parts of the Second Life community is a painfully abused example. The phrase is often used as a perfectly reasonable short hand for an object which has Copy, Transfer and Modify permissions enabled. Such an object can be changed at will, handed to other users within Second Life, and generally shared freely. This phrase is, however, contextual. The context is very clear. It applies to behavior within Linden Lab’s Second Life world. The phrase has no meaning in the larger world. In particular, it has no meaning when it comes to taking content created and used within Second Life to other environments. Content created by Second Life users is not public domain, or free use material. Your use of *any* items within Second Life is governed by the Terms of Service. https://support.secondlife.com/ics/support/default.asp?deptID=4417  In particular pay attention to section 1.3:

 

You acknowledge that Linden Lab and other Content Providers have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Service. You accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that your creation of Content is not in any way based upon any expectation of compensation from Linden Lab.

 

That’s pretty clear. Why can you use copyrighted material within second life?  Well that’s because of section 3.2

 3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

 

Users of the Service can create Content on Linden Lab’s servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.

 

Notwithstanding the foregoing, you understand and agree that by submitting your Content to any area of the service, you automatically grant (and you represent and warrant that you have the right to grant) to Linden Lab: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) use, reproduce and distribute your Content within the Service as permitted by you through your interactions on the Service, and (ii) use and reproduce (and to authorize third parties to use and reproduce) any of your Content in any or all media for marketing and/or promotional purposes in connection with the Service, provided that in the event that your Content appears publicly in material under the control of Linden Lab, and you provide written notice to Linden Lab of your desire to discontinue the distribution of such Content in such material (with sufficient specificity to allow Linden Lab, in its sole discretion, to identify the relevant Content and materials), Linden Lab will make commercially reasonable efforts to cease its distribution of such Content following the receipt of such notice, although Linden Lab cannot provide any assurances regarding materials produced or distributed prior to the receipt of such notice; (b) the perpetual and irrevocable right to delete any or all of your Content from Linden Lab’s servers and from the Service, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party; and (c) a royalty- free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the Service.

 

Further, you agree to grant to Linden Lab a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth below, including the incorporation by reference of terms posted at http://secondlife.com/corporate/privacy.php.

 

You also understand and agree that by submitting your Content to any area of the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to Linden Lab and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your Content, to use your Content for all purposes within the Service. You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else’s) patent rights.

You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and Linden Lab will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Service, including without limitation any legal consequences relating to your intellectual property rights; and (iii) Linden Lab’s acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Linden Lab’s intention not to require users of the Service to forego certain intellectual property rights with respect to Content they create using the Service, subject to the terms of this Agreement.

 

If you’ve gotten here, the answer to my question above is “Because Linden Lab has secured that right, for the use of content in the context of the service.” Well and good. That grant, does not, extend outside of the service. The copyright holder retains their usual rights outside of the service. This means they have the right to grant you a license to use their material if they chose. They also have the right to deny you that use, and absent an explicit grant, you can’t use it. There probably some fair use clauses which apply, for things like photographs of content in a virtual world, but, on the whole, the content is not free to use. Linden lab has retained itself some additional rights, so, you can complain if a random user throws up your content on their web page, but you can’t complain if Linden uses it in their promotional or other material.

Briefly, because this also matters, its not just copyright that kicks in here. Trademark may apply, and, in general, is even more restrictive. You can’t use trademarked material without the permission of the trademark holder, full stop. A copy of a logo or other protected material close enough to be infringing by the usual RL rules which govern such, will be just as protected in a virtual environment. Just a tidbit to keep in mind.

If anyone says of an item in SecondLife  “Its full perm, I can take it and use it as I see fit,” they are basically wrong. If you want to use someone’s content outside of SecondLife, you need explicit permission. It’s that simple.

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1 Comment »

  1. Prokofy Neva said,

    I’m glad you don’t disagree with what the TOS does in fact say.

    But are you making sure this is the regime that goes in the interoperability protocol?


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