The Alphaville Herald

Re-visiting the Intellectual Property Rights Revolution in MMOGs: Examining the Second Life TOS

by Alphaville Herald on 25/11/03 at 5:52 pm

We’ve discussed this issue below but I wanted to refresh a little post on top here tonight (no disrespect to the now towering interview with Polie Bear). I’ve had a chance to peruse the terms of service posted at www.secondlife.com. It’s rather interesting, and I urge you all to check them out. Cory recently posted on this site that the company, Linden Labs and associates who own Second Life, is in good faith trying to preserve individuals’ property rights that other games take away, and if this is the case this may indeed be revolutionary. Yet I still have some worries and concerns about anyone that would want to use this medium for that purpose, and I thought it worth trying to catalogue them a bit.

As I mentioned previously (and the TOS does nothing to ease my mind on this nor should it have to; I don’t think anyone has such ability), I think, concerning legal issues, this is a dangerous medium to work within. Not only does there seem to be little legal precedent here, but we also have a whole lot going on.

I am concerned with the access that others will ultimately have to your Content (“intellectual property”). I believe that Peter Ludlow objected that there is always a worry about someone ripping off your idea, but I responded and maintain that someone concerned with preserving intellectual property is, in my opinion, well advised to keep it as under wraps as possible. In Second Life, it seems that this is impossible. Linden Labs may “track, record, observe or follow any and all of your interactions.” Even if you don’t feel that is a threat, there would seem an additional legitimate concern that other players from around the world may access your content through the Internet. So, that’s a problem right there. This could happen without your knowing it, and by the time you become aware of it, any remedy may be too far beyond reach.

Secondly, there is another issue that an individual has to seriously confront. They are, in effect, relying extremely heavily on an infrastructure wholly belonging to a company that retains all rights to that infrastructure. It seems obvious to me that this will limit the types of creations that you can generate. I’m not sure exactly what relying on their infrastructure entails (time will tell as test cases come forth). Now, the TOS explicitly states that the user does not “own any data Linden stores on Linden servers (including without limitation any data representing or embodying any or all of your Content).” Now, this gets very tricky. I’m not sure how to interpret that and I foresee a court having that task before them shortly, if this game takes off. It seems, at the very least, to give Linden Labs some co-ownership rights with you in your Content. I see Linden Labs interest in maintaining the ownership of their data. Yet, if your creation essentially consists of that data, this seems to me to raise a rather intractable problem. So, suppose I’ve created data representing my Content and I want to sell it to a third party. Given the above, it seems that I can’t sell the data without Linden’s consent, yet what if that data is crucial to the production of my creation in the real world?

Related to relying on another’s infrastructure for your Content, the TOS also states that it has a say in what “appropriate content” may be uploaded and used. So, this seems an obvious limitation on my creation. This act of going through a third-party seems to me to have the effect of limiting the realm of any Content I can bring to the forum. I see this action entirely as within the rights of the company, yet it remains an obstacle that other forms of intellectual property may not always encounter. Here, this third-party involvement is inevitable. Now, to some people this may seem wonderful. Indeed, I see the advantage of supplying individuals with materials that they could never accumulate on their own. Yet, realistically, I think it’s important to acknowledge that this involvement may have the effect of censoring some Content that you are of a mind to create.

Finally, Linden Labs wants you to acknowledge within the TOS that you grant them the right to use your Content in a royalty-free manner perpetually and irrevocably in “any or all media for marketing and/or promotional purposes in connection with the service” and the same kind of right “to delete any or all of your content from Linden’s servers and from the service, whether intentionally or unintentionally, and for any reason or no reason, without liability.” The peril of this seems obvious enough to those who want sole ownership or guarantees of stability.

Now, what the heck does all this mean? I don’t know. (This tired and weathered Legal Editor is profusely sorry here, if you were expecting more). I think a lot will depend on how the Courts (the TOS says the State of California, specifically the state courts for San Francisco County and the U.S.D.C. for the Northern District of California have jurisdiction in matters arising from the TOS) decide these cases. Yet, this seems to be a very fine line we’re all walking. The enmeshment of Linden Labs right to retain their own right to all their data and control content on their copyrighted infrastructure, on the one hand must ultimately tie into individuals’ own intellectual property rights of Content. This entanglement seems so strong that some conflict is inevitable.

Having stated the above, I remind the reader that Second Life is getting rave reviews. Some people may want to play it just for fun. Some individuals may find it the perfect tool for generating Content and ultimate property creation. Yet, if preserving your own rights in any creation stemming from the game is paramount to you, then I would urge extreme caution in this medium.

Indeed the TOS seems to betray the same uncertainty about what the future holds in this realm. The statements reads clearly (a good thing if any of us bother to actually read these agreements; that’s always a good idea in my opinion) that Linden Labs, taken on the best of faith, is uncertain they can provide any more than good wishes to an individual who finds her/his self in the legal arena on some issue stemming from Second Life Creations: “Linden’s acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Linden’s intention not to require participants to forego their normal intellectual property rights with respect to content they create using the service, subject to the terms specified herein.”

As some see it, this is an encouraging and revolutionary step, perhaps. Yet, enforcement of any individual’s own and sole property rights in this medium still seems a huge leap away. For that reason, I would caution individuals to go ahead and have fun but when it’s paramount that intellectual property rights are secured and remain yours to do as you please, proceed with caution. This looks like some rough terrain to me.