Peering Inside: The rights of creators

On 14 November, 2003 Linden Lab caused quite a stir by announcing that users who created or published content via the Second Life service would "retain full intellectual property protection for the digital content they create, including characters, clothing, scripts, textures, objects and designs."

Essentially, the same rights that they'd have anywhere else (barring assorted terms of use/service to the contrary). It seems obvious, in many ways, but ultimately it's actually very rare. Terms of use/service which express a contradictory position are in the majority. In fact, go to the filing cabinet and pull out the contract for your current RL job. Odds are, there are a whole slew of creator rights that you've already signed away that have little or nothing to do with your job.

That, unfortunately, is the normal condition. When it comes to the new, novel, or creative -- almost everyone wants a piece of your pie, and few want to leave a slice for you, if they can avoid it. Even taking Sturgeon's (second) Law into account, competition for the remaining portion of human content and pop-culture is quite stiff.

Linden Lab's take on this, at the urging of Lawrence Lessig, was quite different. In the terms of service, they look a bit like this:

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.

and,

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.

In itself this doesn't seem to be such a large thing. These are, after all, the rights granted to you by law in the majority of the planet's 170 or so countries when you create something.

The difference is that in the majority of cases, you sign those rights away. Let's look at another service where you can create things.

In exchange for use of the Spore Creature Creator, and to the extent that your contributions through use of the Spore Creature Creator give rise to any copyright interest, you hereby grant EA an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Spore Games and related merchandise, including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to EA's and other players' use and enjoyment of Spore Creatures in connection with Spore Games and related merchandise under applicable law. This license grant to EA, and the above waiver of any applicable moral rights, survives any termination of this Spore Creature Creator end user license. To illustrate, and without limiting the statements above, if you create a Spore Creature and upload it (pursuant to EA's agreement) to one of EA's third party partner's sites to create merchandise (such as a T-shirt or a replica), you acknowledge and agree that any other person can make the same or different merchandise using the Spore Creature or other assets that you created with the Spore Creature Creator tool without any compensation or notice to you.

Whew. Quite a pile of text. However, that's what we'd consider a fairly unremarkable case for services where you can create or add content. Unless you look carefully, you may even be handing copyright completely away on images that you upload as profile images for forums or other services -- Honestly, did you really read the EULA's?

More recently, though, services like Twitter and Plurk have been taking the same sort of relaxed attitude towards copyright that Linden Lab has (that is, letting you keep on owning it).

Linden Lab allows you to retain your copyrights for your content, rather than taking them away. With the proliferation of Second Life-like servers and grids that are not operated by Linden Lab, however it becomes a matter of no small, significant concern as to whether third-party operators may choose to permit you to retain those rights on their service.

The point is especially driven home if content can be transferred between different service operators without your knowledge or consent.

What if a user can take content with them (of course they can rip it, but we mean as-a-matter-of-course, in this instance) from Linden Lab's grid to another grid? What if that third party uses a more usual "We own what is uploaded to our servers" policy?

Who gets to decide if the content can go with the agent from one grid to another?

The service operator cannot -- they may have no idea of the terms or even knowledge of the grid that content is to be transferred to, and no rights to authorize the transfer.

The creator cannot (at least not at present) -- there is no facility for them to express agreement or disagreement, or to know in advance what the policies or terms of any third party grid may be. Even if a facility is provided for a creator to permit inter-service content transfer, they cannot -- in advance -- know what rules will apply to their content when it arrives.

The user can't -- oh, they have the technical ability to do so, and they may own an instance of the content, but that doesn't grant them copyrights, or the permission to create what is basically a derived work on another grid.

And all of this still depends on how the operator of any destination service chooses to handle property rights, or even if they have any conception of them at all -- a fact which is far from guaranteed.

Would content creators need to scour third-party services looking for content and issuing DMCA notices? What of services that exist in places where the long arm of the DMCA does not reach?

Is the onus of responsibility ultimately on the end-user, rather than the content creator?

In the end, it may be safer to simply not provide the facility for inter-service/inter-grid content transfers. That's not to say that such content transfers won't happen by other means (they already do), but it seems an impossible tangle at present -- and structuring a framework to permit such transfers would seem likely to cause more problems than it solves, with all of the problems ultimately devolving onto the heads of the content-creators and copyright-holders themselves.

At the end of the day, no party has (by default) both the knowledge and the rights to make an affirmed, informed and rightful consent for the transfer of any content between service operators, and we don't see any situation arising where this might become the case under normal circumstances, as a general rule.