Firewalled Corporate SL Raises TOS Questions
by Alphaville Herald on 05/04/08 at 8:10 pm
Are we all playing by the same rules?
by Pixeleen Mistral, National Affairs desk
Last weekend while selling Sanchon and Jinsil sims and tiering down – a trademark protest – I accidentally dropped my iMojo wire on the marble floor. I’m afraid this means another trip to the Apple Genius Bar — “hey genius, can you fix this?” But I must be lucky, because the iMojo’s insistence on displaying nothing but the Second Life Terms of Service document forced me to read the TOS carefully.
The TOS is an amazing document – granting the Lab a “worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License … to use your Content for all purposes within the Service”. Of course, you still own your work – you just don’t have any control over how LL uses it – and use it they will.
Fascinating patterns emerge when you connect the dots between the TOS, bait and switch trademark policies, congressional cream puff hearings, and the announced IBM/LL corporate firewalled Second Life. Some might even suspect that IBM’s lawyers and PR people are calling the shots now – or do the Lab’s investors have enough pull to get congress to act like a lap dog?
While congress was supine, the media has little to brag about – overlooking the fact that the Lab can bundle any and all user-created content with their new corporate Second Life product – and owe the content creators nothing. Is this a selling point for the new firewalled SL?
By maintaining a one-way connection to the main grid, the Lab can claim the corporate firewalled gardens are technically part of Second Life – and when residents agreed to the TOS, they signed away control over all SL “assets”. No wonder LL gives accounts away for free – the more slave labor, the better. This is not just an SL issue – any number of “free” software-as-a-service sites attempt to annex users’ intellectual property – and change the terms of their one-sided agreements at will.
Of course, this sort of TOS is incompatible with corporate use of SL. If there is to be serious corporate use of firewalled SL, it beggars belief to suggest the corporate users will sign over their intellectual property rights to the Lab – they want privacy, after all. So it appears certain we will see the emergence of a new class of residents living under a different set of rules from the rank and file – at least while they are behind the firewall. Will some residents get to opt-out of the TOS and play under a special set of rules?
Is the Lab bundling “your world, your imagination” into their exclusive limited-access Second Life product? Do they get to have it both ways – distributing residents’ content to corporate enclaves as part of SL, but giving those limited-access sites a pass when it comes to the annexing content created there?
There are practical questions as well. Does the corporate crowd retain control of their own in-world assets with a private asset server? If there is a private asset server, how are the digital right management controls that content creators put on their wares kept intact?
Given the level of mistrust the Lab created with the recent trademark debacle and lax enforcement of copyright violations in the main grid, it is long past time for the Lab to clarify the relationship between the main grid and third party grids – particularly with respect to the asset server and the boundaries of the Second Life service. Or would explaining this create even more unrest in the community?
Razrcut Brooks
Apr 5th, 2008
Pix, LL is offering corporations exclusive use of their grid for good reasons. Instead of a company simply having a “presence” in SL, a company can NOW conduct RL business in a virtual world without the distractions of you and I interfering, griefers, naked newbies, chat/IM spam, blinged up gangsters, beggers, and Prokofy. Sure, land acess/ban and group settings can limit who comes and goes but a separate grid makes it easier and more secure.
Plus, I bet that a separate area for them keeps THEIR employees and guests from teleporting to the main grid . No doubt IBM does not want their employees and investors teleporting to the place in SL that allows people to chop up women…or seeing it in SEARCH.
See :http://secondlifegrid.net/how/
Also, I am not sure I understand your fear that LL will steal resident created content and use such content for their own benefit. I am not saying you are wrong but can you give examples of this happening? Why would they need or want to steal our prims, scripts, textures? If there are any attornies reading this, please translate this part of the TOS for us that Pix refers to in her article. (“granting the Lab a “worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License … to use your Content for all purposes within the Service”. )
(Prok I am joking, I am a fan of SecondThoughts!)
pixeleen mistral
Apr 5th, 2008
@Razrcut Brooks: …I am not sure I understand your fear that LL will steal resident created content and use such content for their own benefit. I am not saying you are wrong but can you give examples of this happening?
examples? – no problemo!
For instance, consider the case of Colt Spearmann – 828,653+ Citizens got free copies of his jeans courtesy of the Philip Linden’s elves. LL never paid Mr. Spearmann anything.
http://www.secondlifeherald.com/slh/2006/10/lindens_violate.html
With the new IBM firewalled gardens this sort of thing will happen under the radar – but since LL makes the rules, this is NOT a problem. When the game gods see something they need, they already have the rights to use it as they see fit. Residents’ should feel honored that the Lab decides to use their works to profit the Lab.
This is much like the SL/Second Life trademark bait-and-switch tactic the Lindens are now employing. Encourage people to do one thing – then, when it suits you, change the rules. Being game god means never having to say “I’m sorry”.
whisper2u
Apr 6th, 2008
Microsoft is trying to buy out and take over Yahoo today. I wonder if IBM is planning on buying out and taking over Second Life? The comments above made that wonderment pop into my mind. Then their SL world Behind the Firewall becomes the highly connected but private HQ for control of all of SL. Maybe if SL goes public they plan on gobbling up a controlling interest or close to it. Hmmm, maybe thats all just a hallucenation…
Forelle Broek
Apr 6th, 2008
@Razrcut
Well, without giving legal advice or a legal opinion (all standard disclaimers incorporated herein by reference, etc. etc.), I’ll try to translate this into plain English:
Suppose you are a content creator in SL. Say you design and sell clothing. Under the TOS, you own the copyrights in your designs. Nobody else can copy, distribute, or otherwise trade on your designs without your permission. Except for LL. They can copy them, sell them, give them away, or do anything else they want to, forever and ever (amen). They can, for example, set up their own store and sell copies of your designs, maybe undercutting your price and luring your customers away. If they don’t want to do that themselves, they can sell their right to do so to anyone else they choose. They don’t have to get your permission, and they don’t have to compensate you. And their rights never terminate, no matter what happens (e.g. if they chuck you out under the TOS, rendering your “content” pretty much worthless to you).
Are they likely to do this? Perhaps not. Would the provision likely stand up in court? Perhaps not. Are many residents likely have the means and motivation to challenge it? Perhaps not. One thing, however, is pretty certain: like so much of the TOS, this is a one-sided provision that no competent lawyer would ever counsel a client to agree to in a true arm’s-length negotiation. Of course (unlike big corporate residents like IBM) you don’t get to consult a lawyer and negotiate over the TOS. You just get to take it or leave it. And take it or leave it again, and again, and again, every time LL, in its sole discretion, decides to alter the terms to its further advantage. Your world, your imagination? My foot!
DinkyHockerShootsSmack!
Apr 6th, 2008
I needed a story and all I got was this Liberace t-shirt.
plot tracer
Apr 6th, 2008
Great analysis from both Pixeleen and Forelle.
I would like to add that todays attempted takeover of yahoo by microsoft is hugely significant. Not only would this reduce “ownership” of the web into fewer hands, it means that information divulged to yahoo and on their servers will move to an american database. Your ip address, real address, search patterns, email account etc will all go to a company who will have other records of your ip address etc. As the web becomes controlled by fewer corporations, freedom becomes stifled and it makes it easier for corporations and governments to track you/ censor content etc. Today in London there were huge demonstrations against the repressive Chinese government- this news will be closely censored by the chinese authorities. With Microsoft and google and yahoos help.
If we don’t fight for our freedoms, they will be taken from us. IBM’s coup in sl and the “corporatisation” of the medium is one small piece in a very big picture.
Darien Caldwell
Apr 6th, 2008
The reason LL has to have this in the TOS is simple. It’s not an evil intent to take away anyone’s designs. The fact is, every time someone connects with a client, and renders an item on their computer screen, it was possible because a copy of your item’s data was transmitted to their computer from LL’s server.
Linden Lab must have legal license to transmit a copy of your item to each and every user that connects to Second Life, otherwise, Second Life wouldn’t work. The client can’t render something it doesn’t have the data for. If Linden Lab didnt’ have legal right to send a copy of an item to every user’s PC, it could be sued everytime someone viewed a creation.
That is the intent of this license, to allow SL to function. However, it could indeed be expanded beyond that intended use.
KMeist Hax
Apr 6th, 2008
ITT: People that haven’t been following the AWG.
It’s no different than a corporation having their own intranet, and still being able to access the regular Internet. Your argument is like saying that because a corporation can have their own private websites, that them using other websites constitutes slave labor. Realize again that most of this they’ve been able to do with private islands already – the only new things are:
- Linden Lab doesn’t get chatlogs on the sims, so you can talk about secret corporate information
- IBM gets to keep some assets private to their section of the grid
tl;dr the same stuff that Zero Linden was proposing at the first AWG meeting. If corporations want to connect to the Grid they want to have a reasonable assurance that no one is spying on them. Or would you prefer a single grid with a Big Brother-esque Linden Labs reading everyone’s chats and — Oh wait, that’s the grid right now, and that’s the grid ever since the grid opened. Corporations get to keep secrets in real life, why should we say “no you cant has sekrits” to them on SL?
I see that Linden Lab wants to transition from “virtual world” to “3D interweb”, why should we prevent that? At least Linden Lab won’t control the entire system then, and anything that LL doesn’t control is one better in my book.
Additionally, I’d rather keep complaining about the trademark issue. Specifically, the way they attempt to make you sign away nominative/fair use on login. I doubt the clauses would be considered valid. The TOS is a contract of adhesion, and I’m not 100% sure but I don’t think that you can sign away fair use rights on a contract.
Doesn’t stop Linden Lab from banning you anyway. Which is why we NEED the grid to extend beyond Linden’s influence.
Timeless Prototype
Apr 6th, 2008
“IBM did not get Multi Gadget last night” http://tinyurl.com/5u8pq2
(I think Yuwie fails to do track backs, time to find another solution for blogging I guess)
Prokofy Neva
Apr 6th, 2008
Hm, I’m not buying at all what Pixeleen is saying here. The story with the Big Rip jeans sounds like a mistake — the Linden put it in the wrong folder and accidently sent it out to the library. That isn’t like them deciding to grab it for their own inventory for free, or their buddy lists or for some promotional campaign.
I’m also finding Timeless thing very self-serving. Why would the asset server agree to separately send out his multigadget updates to everyone on a firewalled server? If those people weren’t subscribers already or purchasers. That part makes no sense. I think he is looking for trouble somehow. I’d like to hear a better explanation of this.
I don’t at all see that the new TOS makes you sign away nominal use. And the issue of contracts of adhesion was dealt with by Bragg v. Linden, and we’ll never know, at least from that case, how that flew, as they settled out of court.
Forelle Broek
Apr 7th, 2008
We know at least something from the Bragg case about how a court viewed the TOS, because, before the parties settled, the court did rule that the arbitration clause in the TOS was procedurally and substantively “unconscionable” (legal term of art). That ruling addressed only one small piece of the TOS, so it’s predictive power is limited. But, it does indicate that a court was prepared to view the TOS as an adhesive, and unenforceable, contract at least in part.
As for nominal use, the terms of the new TM policy, on their face, would indeed impose restrictions on nominal use, in ways not permitted under U.S. TM law. LL is using its TOS to cram down those restrictions on residents, whose only alternatives are to reject the TOS and leave SL now, or accept the TOS and face the prospect of being chucked from SL later at LL’s whim. Prok may not see that; but anyone who understands TM and contract law can.
Forelle Broek
Apr 7th, 2008
@Darian Caldwell
It is certainly correct that the technology requires LL’s having SOME license to reproduce and distribute resident-created content. The license that LL arrogates to itself in its TOS goes far beyond what is technologically required — indeed, by its terms, the license is absolutely limitless. A decent lawyer could easily have drafted a more reasonable license that would adequately have addressed the technological requirements. Instead, whoever drafted the current license chose, for whatever reason, to adopt the broadest and most over-reaching language imaginable. Even without ascribing evil motives, that language is and should be of serious concern.
Prokofy Neva
Apr 7th, 2008
Forelle,
Re-read what I wrote. I said that the entire issue of *contract of adhesion* was not dealt with as a whole. I didn’t feel it was necessary to tag the separate base once again and talk about the “unconscionable” bit, because we all know that, and people mistakenly believe when they hear that that the “entire TOS” was unconscionable — whereas it was only this one narrow bit about arbitration.
It doesn’t matter if the court was “prepared to view” the contract as one of adhesion — they didn’t. And furthermore, I heard at least two lawyers at the Virtual Worlds legal track last week say that when people get these rulings on “adhesion” or “unconscionability” they never win on appeal. So it sounds elusive.
Forelle Broek
Apr 7th, 2008
@prokofy: “Re-read what I wrote. I said that the entire issue of *contract of adhesion* was not dealt with as a whole. ”
Um, no, that’s not what you wrote. But nice try.
Prokofy Neva
Apr 8th, 2008
>Um, no, that’s not what you wrote. But nice try.
Um, here’s what I wrote again, asswipe. My God, people like you are vain. Are you even a lawyer?! Why would you persist in looking so fucking stupid?!
Here is what I said AGAIN:
“And the issue of contracts of adhesion was dealt with by Bragg v. Linden, and we’ll never know, at least from that case, how that flew, as they settled out of court.”
What part of “issue of contracts of adhesion was dealt with” do you not understand?! That’s the whole issue. The rubric covering that issue. I didn’t even feel it necessary to get into the bit about the arbitrarion *because everyone knows it already reading this blog*. You can’t resist trying a hortatory little aside because you imagine somebody still needs to “learn” this. They don’t. It’s been long ago absorbed and everyone went on.
What the court looked at was a narrower issue of an unconscionable TOS on the matter of the arbitration. They didn’t really address the entire broader scope of contract of adhesion as an entirely unfair TOS as far as I can tell. If you have citations, bring them.
The contracts of adhesion problem went NOWHERE. And we’ll never know where it might have gone as it was SETTLED. Der.
Furthermore, we’re told by lawyers at VW08 panels that litigators who get a recognition of a contract of adhesion almost never succeed upon appeal. That lets us know the test is very narrow.
Forelle Broek
Apr 8th, 2008
Prok — blowing smoke, casting invective, waving your arms around hysterically, and evading/clouding the issue are not substitutes for rational and informed argument. You’re just digging a bigger hole for yourself; now go crawl back in it.
Forelle Broek
Apr 8th, 2008
@Prokofy: “Furthermore, we’re told by lawyers at VW08 panels that litigators who get a recognition of a contract of adhesion almost never succeed upon appeal.”
I don’t know who those lawyers are, or where they practice, but, at least in regard to the California courts — i.e. the ones where the LL TOS requires all claims to be brought — that assertion is flat out wrong. To the contrary, in recent years, the California appellate courts have more often than not affirmed lower court decisions holding contract terms invalid on grounds of adhesion and unconscionability. Indeed, in some cases, the appellate courts have found voided contract terms on adhesion and unconscionability ground where the trial court had not.
I’ll give these anonymous lawyers the benefit of the doubt and presume that they aren’t familiar with California law. It is true that many other jurisdictions are less amenable to adhesion & unconscionability defenses. But their advice carries little if any weight as far as SL is concerned.
Prokofy Neva
Apr 9th, 2008
Um, I fail to see how I’ve dug any hole. This is so typical of the tekkie-wiki arguer. It reminds me of Cristiano whining about me “lying” that I could open up WinRar files lol. Or csven whining that I was “lying” about policies of different states re: the drinking age. Tekkies are terribly, terribly wedded to the picture of themselvse as “experts”.
Lawyers are the same way, especially lawyers who were IT guys in a former life — yeesh, what a combo.
So they can’t bear if anybody uses their lingo, or cites their citations. But…they can. This is the Internet. You don’t have to pay to go to law school and buy expensive law books and only look them up in libraries you can…go online now. This has created less friction for learning.
Accordingly, anyone with half an education could read about Bragg and the contract of adhesion and the allegation of “unconscionable”.
So I made two very straightforward statements as already indicated. I didn’t “flail” or “fall into hysteria” (projection much? lol) I merely reiterated that a) I had raised a larger point b) expecting most already knew about the “unconscionable” issue. That’s all.
And…these lawyers really truly did say that these cases don’t win on appeal as a rule. Imagine! Other lawyers! Who disagree! lol that happens all the time, are you aware of that?!
These lawyers aren’t “anonymous” at all. I just don’t recall their names as I don’t believe they are SL regulars. Go on virtualworlds2008.com and find the legal track for the first day in the morning session, and there they are!
I’m not at all persuaded that this assertion of yours is correct for California. When I see someone as literalist, and as tekkie, and as invested emotionally in playing “gotcha” as you are, I realize you don’t have a brain. You are a parrot. Lawyers often are.
Now do stop being a parrot and just realize that nothing whatsoever of what you imagine happened occurred, you were wrong, and you’re wrong on several matters, but that’s ok, because it doesn’t matter. These are abstractions. Until somebody actually gets a case going on “contract of adhesion,” and keeps it going through all the appelate courts and whatnot and wins, it’s all just speculation.
Forelle Broek
Apr 10th, 2008
More of the same from Prok. Here’s a suggestion: Since you are so adept at finding the law online, even without a legal education, why don’t you go look up the California decisions and see for yourself. What you’ll find — not as a matter of my opinion, but as a matter of fact — is that, in a majority of cases, the California appellate courts have affirmed lower court decisions voiding contractual provisions as adhesive and unconscionable. Perhaps along the way, you’ll even learn a thing or two about contract law, civil and appellate procedure, and other matters as to which you are so clearly ignorant.