LL’s Terms of Service – Where To Next?

This past Saturday saw a very informative and very helpful presentation put on by UCCSL and including several real-life attorneys that have actual functional background in Intellectual Property Rights, Copyrights, Trademarks and Patents. The Audio portion of the meeting can be found at Toysoldier Thor’s web site. I highly recommend you go read what he’s written, if possible listen to the audio (it is three hours long). You can also download the audio file directly to your computer by using This Link to the MP3 file.

If you prefer, you may also view the YouTube video containing slides and visuals:

The Short and Skinny

After listening to a fair portion of the audio, I have come to some conclusions as to what we should be doing. The short and skinny of my goals are as follows:

  1. Make Linden Lab back off from their overly aggressive rights grab
  2. Have them return to language that limits them to using uploaded content only on the Service where it was uploaded
  3. Get them to establish a working relationship that shares the profits from placing uploaded content with other Services
  4. Convince them to finally recognize the legitimacy of the User Community and our importance to their business plans

Tin Foil Hat Detour

Before we get started on my list, I want to examine one Tin Foil Hat Theory that seems somewhat plausible. It has issues but … hey, who knows?! So anyway the theory goes like this:

  • Step 1 – Linden Lab creates a facility within Second Life for people to basically upload stolen 3D models. They provide all the legal facilities to be able to say “We didn’t do nuffin illegal! Wasn’t our fault!” but nonetheless, the facility meshes very well with the criminal element using Second Life.
  • Step 2 – LL sits back and waits while the catalog of stolen 3D models grows and grows and GROWS! Quite a few folks notice and scream loudly, but LL is mum and just lets the stuff accumulate.
  • Step 3 – LL enacts a new Terms of Service that basically grants them full rights to grab all that stolen content and use it, resell it .. do anything they want with it including make a mint selling it on their own as yet unannounced 3D model site.
  • Step 4 – The new ToS also makes sure to point out that if the real owners get upset and start putting their lawyers onto the case to recoup some of their lost income, the people that uploaded that ripped content are the ones to blame and Linden Lab is blameless!
  • Step 5 – In good conscience, LL provides the lawyers the names and addresses (and banking details) of all those criminals that stole the content to begin with. That way the lawyers can sue the “Right” people and leave LL alone.
  • Step 6 – LL continues selling the stolen content ad infinitum because they’re not guilty of anything, and until the court issues a “Cease and Desist” order that specifically stops them from selling specific pieces then they’re gonna keep on selling it.

So anyway, that’s the theory in Six Steps. Now lets go down the list and examine each point in detail along with why I feel it’s needed.

Point 1 – Back Off Dood!

The new version of the Terms of Service is the most aggressive such agreement I’ve run across in quite some time. Various people have characterized it as “Evil” while others have talked about it as though it were a warm cuddly teddy bear. To my way of thinking, it’s more in the “Unconscionable” category than anything else.

I specifically put that term in quotes to indicate that I believe the legal “Term of Art” applies to the ToS as it is written currently. You can see the Wikipedia discourse on the topic by clicking “Unconscionability“. This is important as pointed out by one of the commentators in Saturday’s meeting because the State of California has traditionally been very hard on companies that attempt to write and enforce contracts and agreements that are found to be Unconscionable.

Section 2.3 of the Terms of Service conveys to Linden Lab such a giant swath of rights that they are essentially claiming the right to use your uploaded content in the identical fashion as if they were the original creator and copyright owner. Furthermore they have forced you to “Accept” the Terms of Service in order to do anything with your content including delete it from their servers.

In short, they have written the agreement totally in their favor, given you no footing from which to disagree or object, and to date have offered nothing in the way of conversation or justification to indicate why such rights are needed. According to the (informal) definition set forth in Wikipedia:

“…terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience.”

I stand firm in my assessment that the Terms of Service as written presently, and specifically the rights assumed by Section 2.3, are not only overwhelmingly one-sided but are furthermore extremely unjust. Since Linden Lab was the author of the agreement and you are absolutely required to accept the terms in the ToS in order to have any access to your IP, I believe that Linden Lab meets the test for the “party who has superior bargaining power”.

Of course there is the argument that once you click “Accept” then you no longer are attempting to gain access to your property, you are attempting to gain access to Linden Lab’s copy. Thus they are not really forcing you to accept before having access to your own stuff, just access to their stuff. It’s a real legal Catch-22, but trust me, I’ve seen more absurd twists of logic submitted, argued and won in a court of law. (What we normal humans think of as logical and reasonable out here in the real world ain’t necessarily logical and reasonable inside the oak-paneled court of law.)

Satisfying Point 1

So to satisfy my first point, we need Linden Lab to drop the language that provides them all those unlimited and overly liberal rights. To be precise, this language:

“…grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.”

That language is simply too broad, too aggressive and wholly unfair. Accepting that language essentially declares and affirms that all the stuff we upload to Second Life is totally worthless. The fact that Linden Lab can assume all those rights for free (“…and cost-free right and license…”) extrapolates into the true value of our uploads to be zero, worthless, of no value whatsoever. Linden Lab needs to remove this entire stream of gobbledygook.

Point 2 – Restrict Usage to Target Service Only

This is an important point now that content we upload into Second Life might very well be useful and profitable in one or more of Linden Lab’s other services. Some folks have said that they feel it is okay for Linden Lab to go ahead and copy our uploaded content to any of their other services, but I do not agree with this line of thinking.

First and foremost the language in Section 2.3 that lets them move our content anywhere further states that it doesn’t even have to be a service that they now own. In fact, it specifically states that they can copy it anywhere they want. But as the original creators of that uploaded content .. that Intellectual Property .. we need to protect and defend our rights or we run the risk of losing them forever!

I need to harp on this one point as well, what we are discussing here is our Intellectual Property. That is property, a tangible thing that we claim ownership over. It’s not some ephemeral concept that is difficult to fathom (like  or the like); our Intellectual Property is the same as our car, our jewelry, our clothing, in short it is the same as any other thing we own.

Satisfying Point 2

I am still very wary of Linden Lab and their expansion of their rights to include them being allowed to create derivatives and then further to copy anything from our original works up through and including those derivatives to any place they wish. And they can do that without paying us anything for the right, nor do they even have to tell anyone that it was us that made it in the first place.

This sort of language is very suspicious. It makes me think that Linden Lab has their eyes on a massive pile of money and they’re playing coy so that we won’t tumble to what it is and we won’t have any way to get our hands on that money either. In other words, they’re coming off like a shady used car salesman who knows there’s a million dollars in cash in the trunk of the car, but they’re only going to offer $20 to buy the car from you because “it’s just a piece of junk anyway.”

So in order to satisfy my Point 2, they’re going to have to retreat to the language in the previous ToS that restricts their use to the service where it was uploaded.

Point 3 – We Are Partners Dammit!

This is one of the points that continually grates on my nerves. Linden Lab has over many iterations made decisions that appear founded upon the premise that we, their customers, are in fact their worst enemy. That’s nearly the same as if Walmart locked the doors and prevented any of those pesky money-spending Customers inside as they are so much trouble! The new ToS continues that tradition .. and amps it up to a new level.

It doesn’t take a genius to read the terms set forth in the new ToS and come to the conclusion that Linden Lab sees some sort of value in taking our IP to new services, platforms and media. I’m not sure what they’re cooking up, but clearly they have something in the crock pot and it’s smelling real good! Linden Lab could share that opportunity and in the process get more work free of charge, develop a combined force that is working together for the betterment of all, and rebuild some of the trust that has been willfully destroyed over the past few years. But true to form, rather than do some positive things, Linden Lab has chosen to hide behind terrifyingly evil language, Draconian measures (“Accept or Else!”) and play deaf and dumb in response to the clearly evident demands from the user community.

Satisfying Point 3

Linden Lab can include language that gives them a preferential position should there be an advantage or market for our IP on another of their services. For example, they may retain the right to place copies or derivations of our IP on another service provided they: a) Retain the attribution that it is our work and not theirs, b) Include it as part of a larger work or include it in a derived format, and c) Pay a reduced royalty that is one-half of the typical royalty fee for that sort of IP License. (In other words, if the going rate is 10% royalty to us then Linden Lab would only have to pay us 5% royalty. But that is just an example and it needs to be negotiated.)

I think it legitimate for them to set forth a program and language that gives them an opportunity to get a leg up on anyone else. They could even offer programs and opportunities to us that would help us exploit new markets and services, help build an Instant Content Library by employing the 10,000 or so Content Creators that might want to participate in a new platform (as opposed to the 10-20 Linden Lab employees that would be tasked with making derivations of the IP taken from others). After all, imagine how truly amazing and powerful it would be for them to open a fully populated platform in record time all because they brought us Content Creators in at the final development stage.

Point 4 – The Power of the User Community

This is something that Linden Lab has refused to acknowledge or accept for quite some time now. Despite the fact that Second Life was, in its original form, designed to be the “Property” of those living within (remember “Your World. Your Imagination”?), since Philip left the first time the management at Linden Lab has struggled mightily to wrest control back, even going so far as to poison themselves and their product just to prove their point.

I’ve been a “Man” for most of my adult life. But even so, I don’t engage in such macho, chest-beating, screaming from the top of the Empire State Building antics as has Linden Lab. Seriously, the folks in the front office at the Lab are seen as immature, petulant spoiled brats on almost every important decision made over the last 5 years. Yes, they have the full right and power to make us all hurt .. make us hurt a LOT in fact. They have the power to send some of us into bankruptcy, make others of us fold up shop and leave entirely, they have the POWER to do all sorts of nasty, painful, harmful and power-mad things to their Second Life platform and the people that use it daily.

But WHY?!? Why in blue blazes would they need to continually demonstrate their power to harm everyone? Are they so damn insecure as to need the reaffirmation of watching people twist, bleat in pain and eventually “die” (leave the game) just to prove they can do it? This is one behavior that no law can govern, no Terms of Service can codify, and that no amount of Boardroom BS can justify. It’s a habit of supposedly mature adult who like to remind their lowly customers that they are in charge.

Satisfying Point 4

But now here’s the real kicker. As it turns out, Linden Lab does NOT actually have the power. You can see the symptoms of that truth by watching the continual shrinkage in Sims. You can see the truth of that statement by watching the slow decline in User-to-User Transactions. You can see the truth of that statement by reading the daily “Death Notices” of highly visible and well known members of the Second Life User Community who vacate their avatar accounts, dump their business and leave altogether, disgusted at the stupid childish games that Linden Lab insists on playing.

The only way to satisfy Point 4 is for Linden Lab to stop acting the petulant brat, to start treating us with respect and the recognition that our fates are linked to each other. Linden Lab has to stop acting as though they can survive without us .. because they can’t.

But then again, neither can we survive without them. If Linden Lab refuses to take these issues seriously and continues to behave as though they are an island, insulated and immune to the ills that befall us, then they will have dictated their own demise.

Final Thoughts

It’s always distressing to see someone playing Russian Roulette. It’s even worse when they load all six chambers in the revolver before they give it a spin and put the barrel to their own head.

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