Shooting Down a ToS Theory

There is a theory floating around that provides one reason behind Linden Lab’s recent rights grab as embodied in the new Terms of Service released on August 15th, 2013. That theory states that:

Linden Lab is aware of all the stolen content floating around in Second Life, and as a result has been embroiled in some messy and expensive legal actions as an innocent third-party and as an active litigant. Because of this past experience, they have chosen to take the reins by means of the ToS Rights section so that they can properly manage and control lawsuits and help protect their platforms from the harm caused by stolen content.

Blowing Up The Theory

While this is a really neat theory, and it would be something wonderful if it was true, sadly it is not true. Let’s examine some of the evidence surrounding the recent ToS release and after-actions to try and demonstrate why.

“Speak Softly and Carry a Big Stick”

ADT Yard SignTheodore Roosevelt’s famous quote also happens to be a very effective anti-crime strategy. It is used in numerous ways to good effect. For example, many alarm companies provide a yard sign that lets would-be burglars know they are walking into a situation that is protected. Most burglars, when seeing this warning, will instead move on to a house that isn’t so protected. You will also often see window stickers that carry the same message.

Neighborhood Watch SignAnother common sign that can be seen is the one announcing that a particular neighborhood or community participates in the “Neighborhood Watch” program. These signs are often posted on poles and signs at the entrances to the community. This lets those thieves that are driving around, casing potential targets, know that their actions will alert the police and may wind up with them being “contacted” by local law enforcement. The last thing a cruising thief wants is to be “contacted” by the cops as they usually have their burglary tools with them. That can lead to some embarrassing questions and possibly a trip downtown.

The Big Stick

So if the theory stated above were to be true, Linden Lab would save themselves a tremendous amount of legal expense by simply stating, in a bold and public manner, that they are very determined in their anti-theft methods. They could point out that from now on, all lawsuits involving IP Theft will be orchestrated and financed by Linden Lab.  They would put a giant “Neighborhood Anti-Copybotting” sign on the doorways, entrances and logins all around each of their properties. But they haven’t.

Who Carries the Stick?

This of course raises the question: “Who really has the Big Stick?” This is a very important question as it can significantly affect your ability to protect yourself and your creations. According to a recent post on the Second Life Forums by Chelsea Malibu, the conditions put forth in the new Terms of Service assign the right to defend your Intellectual Property Rights to Linden Lab .. totally.

Section 2.3, Paragraph 6: Linden Lab has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Linden Lab’s cost and expense, to which you hereby consent and irrevocably appoint Linden Lab as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

Put Down the Stick or the Avatar Gets It!

So here’s the real problem. Linden Lab has demanded by virtue of their new Terms of Service that you give them essentially full control over the content you upload to any of their services. That’s not just Second Life, but ANY of their growing catalog. They have insisted that you not be allowed to take any legal action on your own behalf should you find out that someone has stolen your content through their service. They have required that you let them do it all, at their own expense of course, but nevertheless you have surrendered your right to protect your own IP by the mere act of uploading it to their service.

Then Linden Lab put down their stick and pushed it aside.

They have refused to make public comment that their actions are designed to do anything. They have not said one way or the other what is their intended outcome. Now maybe I’m just a dirty-fingernails country boy suspicious of the slick city folks, but anytime some suit waves some legal document around under my nose but won’t say what it’s intended to do, I load up a round of rock salt and start taking aim at that suit’s backside.

They could have said “This is all to help us protect you” and I’d be okay with that. They could have said “This is all to protect our own hindquarters” and I’d be miffed but willing to grant some leeway. But instead they have said “Trust us. We don’t really intend to harm you” .. and that’s when I pull the hammers back on both barrels.

Final Thoughts

There is no stated reason why Linden Lab needs the entire set of rights they demand through their Terms of Service. There is only their request through various trusted sources to give them time and trust them. They have demonstrated time and again over the past many years that the only trust they deserve is the trust to bend us all over the barrel.

Sorry Mr. Humble, but trust is NOT what I’m ready to give you.

…. click …. click ….

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5 Comments on Shooting Down a ToS Theory

  1. Dixie Barbosa on Thu, 24th Oct 2013 1:37 AM
  2. How about the theory that they want to be able to use user content from Second Life in Phil Rosedale’s new project: Hi Fidelity?

    By the sounds of it, Hi Fidelity is gonna be like Second Life The Sequel (see link provided above, or google for Triangulation 116 videos, great interview where he explains more on what he’s currently working on). And wouldn’t it be great if a successor to Second Life would have some content to start with? Much like the library in SL? How about some great mesh creations that are out there in SL. Or clothing, or avatars, skins, you name it. And all of that, legally hassle free.

    It more or less stays in the Rosedale family, so to speak, so it wouldn’t really be selling it to third parties (I’m sure legally it would be, coz most likely he’ll put Hi Fidelity in a new legal entity, also for tax reasons). In the video he says that LL owns part of HF, so that proves that point.

    Maybe you can check it out and give us your thoughts on this theory?

    And another theory: he’s getting more professional and wants to expand the business model to social media (like facebook) to make the company look more viable for the future, to work towards an IPO. This is a common symptom found in companies that are prepping to go public. If they want to sell their shares at a higher price, they need to show great prosperity. Show expansion, innovation, upscaling, having everything in order financially and legally …

    To be honest, this might be a bit far fetched, but it could sound feasible, right?

    Anyway, I’ll leave you to it. Great blog, love it! Keep up the good work!

    Warm regards,

  3. Dixie Barbosa on Thu, 24th Oct 2013 1:39 AM
  4. Oh, in my previous comment about that interview with Rosedale: click on my name for the link to that video (takes you to youtube). That’s what I meant to say.

  5. Darrius Gothly on Thu, 24th Oct 2013 2:37 AM
  6. Hey Dix. Thanks for the lead. I have been looking at .. and thinking about .. Hi Fidelity for the past few days. It would make sense, and since that platform is officially “outside” the Linden Lab family, it would require them to have the rights to move stuff there. The one thing keeping me from saying “Woot! Yeah, that’s gotta be it!” is the fact that Philip seems to base his ventures on public participation, and the way the new ToS is written totally cuts the “public” out of the process. But, it’s hard to say. After all LL as well as some of LL’s investors are also putting money into Hi Fidelity, and they do have an interesting technical theme.

  7. Dixie Barbosa on Sat, 26th Oct 2013 1:21 PM
  8. Hi Darrius,

    Nobody knows right now what Hi Fidelity is gonna turn out to be. I’m sure not even Philip and his partners don’t, as he explains in the interview. Either way, whatever we come up with, it’s all be speculation. I’m sure nobody within or outside of LL who are in the loop on why this monstrosity of a ToS was put in place will ever talk about it.

    But to me it sounds feasible that he would like to use content from SL in HF, and that he’s covering his legal basis. He might ask content creators for permission, still, but wouldn’t need it. What about scripting language? If he plans on using some kind of LSL or other language, he may want to implement snippets from SL, created by users.

    So if it’s just to make something better, with all good intentions, and without really earning money behind content creator’s backs, I guess I can live with it.

    I have to say, if it’s all true what he’s saying in that interview, I do like the direction he’s going in, with Hi Fidelity. And if this ToS change is just a typical case of CYA (Cover Your Ass), then so be it. Every large company nowadays has a ToS like that. Watch the documentary “Terms of Service May Apply” (see URL provided for the IMDB listing). A bit cynical, but I’m sure mostly based on true facts. Gives you some insight into how everything you put online anywhere basically means that you give up your exclusive rights.

    Anyway, we’ll see where this new ToS takes us. I’ve certainly deleted any RL stuff from my SL inventory (mostly uploaded pictures n stuff), and I’ll definitely be careful what I upload and/or create in SL from now on.

    Maybe you’ll see me again, commenting on another article on your blog. I’ll certainly keep following it.

    Take care,

    ps. not sure if you have a spam filter active for comments, that’s why I don’t paste links in the articles themselves. please click on my name for the URL provided.

  9. Dixie Barbosa on Sat, 26th Oct 2013 1:25 PM
  10. Oh, one more quick thing. Found a funny comic earlier this week and thought you would like it. Please click on my name for the link.