We are seeing an increase of something that we find disturbing on many levels: self-created licenses for content.
The reasons we find these licenses is disturbing are many: in general, content creators are not lawyers, nor do they seek legal counsel in developing their license agreements. These agreements are often poorly framed or worded. The agreements do not indicate what legal jurisdiction and what laws of what country govern them. And, scariest of all, some of these licenses attempt to ‘reverse engineer’ previous licensing agreements.
Any software developer will understand why licenses cannot be changed after something has been issued. Others will have used that original bit of code issued under one license, which has its own unique set of requirements and restrictions. These users may have even created a product that incorporates the original bit of code. If coders were allowed to change their original license terms, that means that anything created with that original bit of code would also be subject to these new terms, which might be more restrictive than the initial license agreement. Trouble, heartache and grief and legal strife lies that way, and so once something has been released under one license, that is the license that governs its use for all time.
Likewise, content creators can’t change their license terms after the fact. We see this increasingly with content creators who have been developing for Second Life®, where they are suddenly changing their terms of agreement for previous purchasers. Unfortunately, licensing doesn’t work that way. If you license content under one agreement, you cannot legally to make a unilateral change in the licensing agreement unless you have included language to this effect in the original license.
It’s just like the coders with their software licenses: if they were allowed to change the license type, that change would create a legal and administrative nightmare and no one would use their code as a result. Users would be afraid to, since they wouldn’t know if they had to try to track everywhere that code was used, in what products, and how the licensing might change the usefulness and applicability.
Since most of these licenses are not developed by actual lawyers, but by the content creators themselves, those agreements are missing certain critical and important terms…such as a clause enabling the content creator to make changes to the licensing agreement at will with appropriate notification to purchasers of that content going forward.
We have been working with a team of American Bar Association lawyers for the past 18 months, developing legal templates that content creators will be able to use as a ‘jumping off’ point for their own agreements. These agreements are only suitable for organizations or individuals who are based in the United States, and of course, legal counsel should be sought to help further develop them. Towards the end of October, we will be publishing these legal templates for content creators to use in developing their own legal agreements for licensing.
We will also be publishing our legal primer for content creators, which is intended to help content creators navigate the murky waters of content creation and licensing for OpenSim-based worlds.