As far as 7.3 I would agree that not just this section, but the TOS as a whole basically say by using this service (SL) you agree to give up a lot of rights. However, I interpret section 7.3 a little differently. Section 7.3 states:

“…you hereby grant each user of Second Life a non-exclusive license to access the User Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform the Content In-World or otherwise on the Service solely as permitted by you through your interactions with the Service under these Terms of Service.” (emphasis added)

I would argue that “solely as permitted by you” can be interpreted to mean that content can be used only as you permit (i.e. give permissions copy/mod/trans) and only in SL.

I don’t think LL put this section in to take away our rights, but to be able to reduce their own burden in content theft cases, and to be able to provide rights such as the new Snapshot and Machinima policy.

Having said that… there are some things I still disagree with you on, and/or that I might not have made clear.

I agree with you that the Terms of Service could be perceived as “all or nothing” and therefore legally questionable. I purposely (in the interest of being fair and open) brought up the Bragg case in which the arbitration clause of the TOS was ruled “unconscionable” for this very reason. However, this does not mean that we don’t have to follow the TOS nor does it automatically make Linden Lab thieves (as presented by the Plaintiffs). While some companies may use their “all or nothing” TOS to act in bad faith (as you suggest) I personally do not believe that this is Linden Lab’s intent. I believe that their TOS were written in such a way to protect Linden Lab. By providing us an open platform, with the tools and freedoms that they have given us, they also carry a lot of risk. I believe for this reason they absolutely need to have protective terms in place. I also believe that this is justified based on the types of lawsuits that have been brought against them up to now. I don’t believe any current or former plaintiffs are/were acting in the best interest of Second Life community, but in their own best interests. I also don’t agree that Linden Lab has been “erratic” or “disingenuous” in regards to the TOS. They essentially have said the same thing the entire time – Linden Lab owns everything, but they grant us certain rights and licenses. This has never changed. I can find you posts by many different residents/communities that understood this and that date from recent years, all the way back to 2003. This new version only further “clarifies” this.

You said that, “Individuals, organizations, educational facilities, and corporations have invested time and money on the premise that what they buy is SL is “owned” by them”. I would argue that is not at all why many invest time in SL. I’m not sure whether your thoughts imply confusion or that we are debating something different, but Linden Lab’s format for content in Second Life is proprietary. Second Life content doesn’t ever reside anywhere, but on Linden Labs servers. The virtual content being traded is not copyrighted goods, but licensed software products. So as I said in my post, while we are creators and consumers, we are *not* buyers or owners. Technically, the way things are, legally, no actual purchase took place so you never really “own” the content. So when it comes to deleting content, this case is very different than digital goods that you purchase. With the Kindle, users actually paid real money to purchase the book, and the TOS did not give Amazon permission to delete the book. In Second Life, only a transfer of licenses occurs, not a purchase, and the TOS as they are now, gives LL the right to delete content at any time. However, the only time I have ever seen content deleted by LL is if it was stolen (copybotted by someone then passed out or resold), or if it was obtained by using some sort of exploit. This makes perfect sense to me. If I purchase stolen goods in the real world, the police can seize them without compensation, regardless of whether I knew they were stolen or not.

You are also right that my Monopoly money was not a real currency, but my point was not just that I own nothing, but that the advertising tells me that I do. As far as WoW, I could argue this for hours as well, but since I’ve already said more than I intended, I will leave it at two things – you say you don’t own anything, but most items in WoW become your avatar’s “property.” You also say that you only pay a subscription fee, but most objects have monetary value and are often openly traded. You also can’t back up any regions or “property” there even though you paid for them with your subscription fee. You may be able to back up your website, but can you back up your Plurk, Twitter, Facebook, or even your email? You brought up the Kindle earlier and said you had rights to your digital books because you own them, but in fact you can’t back up your electronic books to any other device either. In addition, if you are implying you want to be able to back up the things you claim you “own” on Second Life (even though legally at least for now you don’t own them), then you are also implying that you want to supersede the creator’s intellectual property rights.

You also asked,” If they encouraged others to invest in their platform under certain pretenses, why shouldn’t they suffer legal consequences for failing to hold up their end?” The answer to me is simple. Since you are talking about legal consequences, we have to look at the legal issues. Legally, the TOS never promised “virtual ownership” as you called it. Show me a legal document that gave you “ownership” of anything. As far as I know, as of today, no court has ever completely overruled a TOS. In fact, I can find you plenty of case precedent that has upheld forced agreement to TOS, and “all or nothing” TOS, etc. Remember, the court never established that Bragg ever actually “owned” anything nor did it throw out the entire TOS. The judge simply ruled that the TOS at that time could not force Bragg into arbitration, because that particular clause was unconscionable.

Finally, you mentioned that Linden Lab gave their users “rights” and then took them back on a whim. The rights they gave their users and creators was the rights to their intellectual property, which is one of the most powerful rights you can have. It is what enables me to operate my company. They have never taken this right back, and I am very thankful to them to still have it today.

Just to reiterate, you currently do not have ownership rights because no legal purchase of content was ever made, just an exchange of licenses. The TOS legally gives LL ownership rights, as you have already agreed to in the TOS. This is not a new change of policy.

To me, the thing more dangerous than the failure of many people to recognize their own rights, is the presumption that they are ENTITLED to more rights than they are legally provided as determined by the agreement that they willing entered into (and therefore agreed to) while at the same time wanting to ignore others intellectual property rights, all simply because they feel entitled.

For one thing, “all or nothing” TOS agreements are legally questionable, especially when they contain arbitration clauses, etc. I have mixed feelings on this issue, personally. On one side, I believe that companies hold the right to present their own terms of service. However, I also believe that those terms should hold up against the actions and policies the company exhibits and they should not be loopholes for companies to make false promises and act in bad faith. All hyperbole aside, Linden Labs has been, at best, erratic, and at worst, disingenuous in their positions on many of the issues their new TOS changes address.

Linden Labs has made a lot of promises over the years to their user base. They’ve presented virtual property as real property. They’ve pushed the idea that “ownership” in SL is sacrosanct. Individuals, organizations, educational facilities, and corporations have invested time and money on the premise that what they buy is SL is “owned” by them. And, in a sense, the permissions system backs that. If I buy a virtual rocking chair in SL, it goes into my inventory. The seller cannot yank it from my inventory. While SL could (and has, on occasion) delete it from my inventory, that is a questionable act. Many things, even in RL are sold with a license agreement of sorts. When you buy a book, you are not given permission to reprint it’s contents. The same with DVDs, etc. However, there is no question that you own the book and the DVD. In the virtual world, it is easy to delete data, and so people fail to realize that they should expect and demand the same level of ownership from virtual goods. If you destroy something of mine, IRL, you can be taken to court for replacement costs, etc. One day, I do not doubt, this will also be the case for data. Arbitrarily deleting someone’s inventory without compensation is, in kindest terms, an act of vandalism. When Amazon had to honor a legal agreement and remove certain copies of Orwell books from the Kindle’s of customers who has purchased them, their PR took a big hit — even though they refunded their customers. The expectations of property will catch up with the goods; we’re just not there yet. Your tone would seem to indicate that you believe consumers should not feel entitled to the goods they purchase. What then should they feel entitled to? How long should they be guaranteed use of their items if they don’t “own” them?

Your Monopoly analogy is also deeply flawed. You state that you don’t believe you own your virtual property any more than you think you own Park Place, etc. However, you do not exchange your monopoly money for real money. When I play WOW, I don’t own anything, but I’m not trading my real money for it, either. I pay a subscription fee that allows me access to the game itself and what I can gain/achieve in that format. Second Life charges money for their land. I “own” an island. I paid for it, and I pay to maintain it. The better analogy would be server space on with a hosting service. My blog, for example, is mine. I own it. It is made up of data and hosted on a server I don’t own. I have the ability to make back-ups. If my host no longer wishes to provide me service, the content I own is still mine.

What Linden Lab offers through Second Life is unique. It can’t be compared to a game, or RL sales, or anything exactly. It’s a new frontier with new pitfalls to navigate. It takes virtual ownership to the next level. Unfortunately, the company has been scattered on its message to users who have invested, in many cases, invested thousands of dollars and thousands of hours in businesses. There are obligations on both sides of that relationship. Something worth considering is that since it is the norm for virtual games like WOW to own and limit all content within their environment, why is there a feeling of consumer and creator entitlement that is different within the Second Life community? Isn’t it because Linden Lab pioneered and then heavily promoted this concept of virtual ownership and creative control over that which is constructed in their platform? If they encouraged others to invest in their platform under certain pretenses, why shouldn’t they suffer legal consequences for failing to hold up their end?

Finally, I read often the claim that since LLab “gave” its users the rights over content in the first place, they can do whatever they like with those rights. I find that point of view deeply troubling. First of all, the initial representation wasn’t that LLab was benevolently bestowing rights upon people. The theory was that virtual goods have value and content creators have rights. As scripters and coders who make their living off something with no tangible output, this was not a leap of logic. Yes, they were the first company to provide a platform and tools for an economy like this to be viable, but the concept is not something that can be put forth and withdrawn on a whim. Especially not when real people have invested a lot of real money.

There are a lot of dangers regarding virtual property, but nothing is more dangerous than the failure of many people to recognize their own rights. Granted, there are those who have unreasonable expectations — but that loud and silly minority should not negate the reasonable expectations of the average consumer and content creator.

But you are missing something. Those game (WoW, EVE, etc) have a monthly fee. Real money changing hands. So, abstractly, and certainly not directly, the items in those games ARE actually bought by the users. The monthly fees are like an investment, if you will, of both the user’s time and money spent on their account, character, guild or whatever. And whenever the service provider deems it necessary, they will nuke a users account without hesitation. All of that user’s time and money spent is gone in an instant. Sorry, no refunds.

I fail to see the efficacy of your argument. There is definitely a relationship between the every day, run of the mill MMO and Second Life.

As consumers we have the right to use the content we have licensed in Second Life in whatever capacity we were given.

I don’t see how a company that does give us rights like IP, and fair use, can be considered a “totalitarian regime.”