Over the last few days, I’ve read dozens of articles covering the newly updated Second Life Terms of Service (TOS) and the Class Action Lawsuit that has been filed against Linden Lab and Second Life creator Philip Rosedale. These reports have frustrated and perturbed me, but I expected there to be some melodramatic “news” surrounding these events. I can see how these events would be fodder for many of the sensational stories that are written about Second Life, most of which are about as accurate or thorough as you would expect to see in any common place tabloid. However, this afternoon when I saw that the Los Angeles Times and Mashable (who I hoped would have more integrity) had jumped on the bandwagon of sensationalism then I could no longer bit my tongue and keep my facts to myself.
Second Life’s newly revised Terms of Service
Second Life’s newly revised Terms of Service (TOS) officially took effect Friday. Though they were released a month ago, many reports are just beginning to surface about the updated TOS. While most users (in typical online fashion) probably just clicked ACCEPT before even bothering to read them, there were multiple changes, that whether you read them or not, you are now legal bound to. The changes mostly involved further clarification of Service and Content Licenses, including a new Snapshot and Machinima Policy.
The updates were consolidated by Linden Lab into the following reference chart:
Snapshot and Machinima Policy
The most significant of these changes (in my opinion) was the introduction of the completely new Snapshot and Machinima Policy. The Snapshot and Machinima policy grants Linden Lab and other Second Lifer users a license to use snapshots (without permission) and machinima (with permission) of Content that is publically displayed in-world. Creators who want to reserve their rights can do so by placing their creations in private areas or by altering the Covenant of the land to prohibit snapshots or filming of machinima. The EFF spoke out in support of Linden Lab, praising this new policy, by stating,
Instead of running from the new kinds of fair use enabled by new technologies, Linden Lab has embraced them… Linden Lab’s behavior should be an object lesson to movie studios and major record labels, who have alienated their own fans by trying to thwart new fair uses as they come along, whether through DRM or DMCA takedowns. Linden Lab has shown that there are innovative new ways to give the green-light to fair uses while still giving users the freedom to protect their creations. We hope that movie studios and major record labels are taking notes, because Linden Lab is showing them how it’s done.
Service and Content Licenses
Mark Kingdon, CEO of Linden Lab described the other licenses on the official Second Life blog:
…We’ve clarified the service and content licenses in the Terms of Service.
- Linden Dollar License: This is the license that allows you to transfer Linden dollars to other Residents. When you get Linden dollars, you get a license to use them, and when you transfer Linden dollars to other Residents, you are transferring your Linden Dollar License.
- Virtual Land License: The license you get when you acquire virtual land in Second Life works similarly to the Linden Dollar License. When you transfer virtual land to other Residents, what you are really transferring is the license you get to use that virtual land. This license reflects what virtual landlords are doing already in Second Life when they rent land parcels to other Residents.
- Service Content License: To enable us to provide the Second Life experience to you, we need to be allowed to “use, reproduce, distribute, prepare derivative works of, display, and perform” content in Second Life. However, the content you submit to Second Life is your content, not Linden Lab’s; you retain the intellectual property rights in your content. And, we’ve added a provision that ends the Service Content License for copies of your content that you delete from Second Life.
- User Content License: By submitting content to publicly accessible areas of Second Life, you allow us to display it and allow other Residents to see it. You also allow other Residents to “use, reproduce, distribute, prepare derivative works of, display, and perform” your content “solely as permitted by you through your interactions with” Second Life. Your interactions include your use of the Second Life permissions system. The User Content License reflects how our content creators are using the permissions system. The User Content License also clarifies that content creators remain the intellectual property owners of content they transfer within Second Life. Simply receiving content and becoming the “Second Life owner” of the content does not make you the intellectual property owner.
Evans et al vs Linden Lab
I have read the entire newly updated TOS and the previous version (that just was replaced) as well. I recommend that you take the time to do the same. While I am NOT a lawyer, I did not find these newly updated TOS to be (second) life changing. However, a new Class Action Lawsuit was recently filed against Linden Lab and Second Life creator Philip Rosedale that includes in its arguments the Second Life TOS. The Plaintiffs of this case: Carl Evans, Donald Spencer, Valerie Spencer, and Cindy Carter, are claiming misrepresentation and fraud, among other things. As I read the Complaint, the Plaintiffs allege that Philip Rosedale tried to “bait the hook for potential customers” by intentionally misleading them to believe that by buying virtual land, they would own that land outright and therefore acquire ownership rights to it, only to turn around and seize their land/items/$L, without compensation, and without honoring any of their rights as owners. The complaint actually goes as far as to compare Rosedale to a “hawker sitting outside Second Life’s circus tent, singing marvels of what was contained inside to entice customers to enter.” The sarcasm that seeps from its pages puts this blog to shame. So much so, that well respected and informed virtual world blogger Ren Reynolds responded to the Complaint by asking, “you’re having a laugh, right?”
The reason many of us find this lawsuit to be a joke is because it’s widely know, understood, and accepted that while Linden Lab affords us many rights that most online game/MMO/virtual world companies do not, in the end, they own everything on their servers. It is also included clearly in the TOS, both now and in the prior version.
2003 TOS – 4.3 All Data Is Temporary. When using the Service, you may accumulate treasure, experience points, equipment, or other value or status indicators and contribute to the environment (“Accumulated Status”). THIS DATA, AND ANY OTHER DATA RESIDING ON LINDEN’S SERVERS, MAY BE RESET AT ANY TIME FOR ANY OR NO REASON. ALL CHARACTER HISTORY AND DATA MAY BE ERASED IN WHICH CASE EACH CHARACTER MAY BE RESET TO NOVICE STATUS. YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER RIGHTS YOU MAY HAVE WITH RESPECT TO ITEMS YOU CREATE USING THE SERVICE, ALL OF YOUR CONTENT AND ACCUMULATED STATUS HAS NO INTRINSIC CASH VALUE AND THAT LINDEN DOES NOT ENDORSE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO CONTENT OR ACCUMULATED STATUS.
2010 TOS – 4.3 [..]
You agree that Linden Lab has and may exercise the right in its sole discretion to pre-screen, refuse, or delete any Content or services from the Service or disable any user’s access to the Service without notice or liability to you or any other party, including upon our belief that such user’s conduct, Content, services, or use of the Service is potentially illegal, threatening, or otherwise harmful to any user or other person or in violation of our Terms of Service, Community Standards, or other policies.
In fact the previous version made it extra clear by stating,
2003 TOS – 3.3 Linden Lab retains ownership of the account and related data, regardless of intellectual property rights you may have in content you create or otherwise own. You agree that even though you may retain certain copyright or other intellectual property rights with respect to Content you create while using the Service, you do not own the account you use to access the Service, nor do you own any data Linden Lab stores on Linden Lab servers (including without limitation any data representing or embodying any or all of your Content). Your intellectual property rights do not confer any rights of access to the Service or any rights to data stored by or on behalf of Linden Lab.
The TOS both prior and currently make it quiet clear. I don’t think I “own” my virtual property any more than I thought I owned Park Place when I bought it playing Monopoly last weekend (even though their ads told me that I “can own it all” when I “buy, sell, and trade famous properties” and become “the next billionaire.”)
After people understand that legally we all agreed to (in a sense) give our ownership rights away, they want to know, why? To answer that you must first understand how content in a virtual world works.
While, like in Monopoly, we habitually use words like buy, sell, and own because they have become sort of a native language that we are accustomed to using, we never actually buy, sell, or own anything physical, nor is it ever equal to a real life purchase. Yet, some people feel entitled due to the immersive experience of virtual goods. You paid for that whatever, so you must be entitled, right? In reality, all you really paid for was a license. When you “buy” something in Second Life you pass on a license (i.e. your $L) and in return you receive a license that grants you access to block a of code/data that in-world we see as an object rezzed by the SIM that is running on LL’s Second Life servers. With Second Life hosting and storing everything, is there any wonder that it belongs to them?
Many online games/MMOs/virtual worlds all operate on a similar set of rules. Blizzard owns everything in World of Warcraft, or CCP Games owns everything in Eve Online. They all have clear TOS that you must accept to play. They all have the right to seize your account. They all have creative advertising. These aspects are an industry standard in these types of online/virtual environments.
Virtual worlds are not the only environment where you see this type of “ownership” either. It is very common and well known that University professors who create something or formulate an idea might be permitted some rights, but their work overall belongs to the University.
So now looking at the big picture, it kind of takes the bite out of the lawsuit, right? Or does it?
While most people would agree that for multiple reasons paying for a license doesn’t entitle you to many rights (as defined by the TOS), there is some previous precedent in this type of case against Linden Lab. Back in 2007, Marc Bragg sued Linden Lab claiming essentially the same thing. He purchased a series of land and was selling this land, when Linden Lab terminated his account and seized his virtual assets. Bragg admitted that he had, “learned of a way to purchase virtual land significantly below market values,” and was reselling it for a profit. Linden Lab argued that they proceeded inline with their TOS as Bragg admitted he was using an exploit to buy the land. The judge did not see it as open and shut.
In the first paragraph of his opinion the Honorable Eduardo Robreno states, “While the property and the world where it is found are “virtual,” the dispute is real.” He then continued, “Presently before the Court are Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (doc. no. 2) and Motion
to Compel Arbitration (doc. no. 3). For the reasons set forth below, the motions will be denied.”
“Linden presents the TOS on a take-it-or-leave-it basis…”
“In effect, the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden.”
“…the arbitration clause is not designed to provide Second Life participants an effective means of resolving disputes with Linden. Rather, it is a one-sided means which tilts unfairly, in almost all cases, in Linden’s favor…”
Linden Lab then settled the case a few months later for an undisclosed amount.
What that means for this current case is still unknown. What we do know is that the case is being heard in the same court, before the same judge, by the same lawyer (Jason A. Archinaco) who handled Bragg’s case, and includes much of the exact same text/claims as the Bragg case. I would argue that the Lab is not in a position to simply settle this case. While many of the of terms that will be discussed might be typical contract law, this case is anything but typical. As Ciaran Laval points out, this case could open a massive can of worms. With Judge Robreno already having an understanding of the case, Archinaco having some experience and time to build the case, and the Plaintiffs having requested a jury trial, I can’t begin to predict where it is going, but it is certainly the case to keep an eye on.
Will we even recognize the virtual world after imposing so many suppressive real world influences onto it? Are we really ready for the consequences of our selfish complaining?