Testing the New Terms of Service

Before we delve into what might happen in the future, let’s review briefly the new Linden Lab Terms of Service and how it affects the operations of the Lab’s various software titles. Other recent posts on this blog that relate to the new Terms of Service are listed at the bottom of this post HERE. The full Terms of Service is now located on the Linden Lab corporate web site and is located HERE. The section that has given everyone the most heartburn is “Section 2.3 You grant Linden Lab certain licenses to your User Content.

In specific, Linden Lab claims rights to your Intellectual Property (IP) almost exactly as though they had created it themselves. About the only thing they did not claim is the right to register a trademark or copyright for it. Section 2.3 also neatly absolves Linden Lab of any liability should a future lawsuit arise that questions the true ownership and usage rights for something you uploaded to any of the Linden Lab services. In short, anything you upload to a Linden Lab-owned service becomes theirs to use as they wish, and if any problems arise then it’s on you. (Do not be alarmed! That funky smell is axel-grease, road grime and various forms of mud while the dark black brown gunk two inches from your nose is merely the caked debris under the bus!)

Potential Change Coming for the ToS

Yes, it is very possible that a new version of the Terms of Service will be coming along very soon now. But do NOT get your hopes up. The reason for the change? Look at the table of contents section of the ToS. Note that the section title for Section 9 reads “Suspension and Termination of Your Account“. Now click it and see what Section 9 really reads:

9. RELEASES, DISCLAIMERS, LIABILITY LIMITS AND INDEMNIFICATION

If Linden Lab does update the ToS to fix this typo, they may or may not push a new Accept or Decline box on your next log in. Just be sure to read the sensitive sections carefully if and when you see the new ToS Accept box appear.

Initial Decisions – Accept or Decline the New ToS?

When you logged in to Second Life any time after the new Terms of Service was put into effect (August 15th, 2013), you were required to Accept the terms of the ToS before you could proceed. If you attempted to access any of the Linden Dollar account or other “Financial” functions of the Second Life web site after that date, you were required to accept the new ToS before you could proceed with those. While the full text of the Terms of Service was presented in the Accept/Decline window, there was no summary of the changes made nor was there even the slightest indication as to what sections in general might be modified. Considering how extensively the ToS changed, it was an incredibly daunting task to compare the previous to the new version.

Proper and fully cognizant behavior at that point in time would have been to Cancel the decision, close and log out of the Viewer then contact your attorney and provide them with the full text of the new Terms of Service. You would then need to pay them for the many hours of time necessary to compare and contrast the new ToS with the old so that they could then counsel you as to your best course of action.

Needless to say, for anyone except someone earning their primary income plus sufficient profit to warrant that level of legal expense, that action would be totally out of the question. With many lawyers located in the U.S.A. charging $450.00 per hour and assuming they would require at least four hours minimum to review the new ToS and provide a Legal Opinion, that is a $1,800.00 expense. If your business is located outside the United States then you would pay significantly more for a valid Legal Opinion because your attorney would need to be skilled in International Commerce laws as well as Internet Law and all the other specialties involved.

Clearly this is not something that many people can afford. In fact, I’d be surprised if there are more than five businesses in Second Life that can afford this level of legal expense. Considering that there are more than 50,000 Merchant Accounts selling at the Second Life Marketplace, 5 Merchants that can afford to protect themselves at this juncture is only 0.01% of the total population. Oopsie!

Most likely, you did the exact same thing every one of the other 99.99% of business people did .. you clicked Accept and logged straight into Second Life. However it is important to remember that you had very little choice at that time. You had no indication that the new ToS could be as damaging to you as it is now, you had no capability to retrieve your Intellectual Property and clear out your Inventory without accepting the new ToS, and you had no financial capability to follow a prudent and fully informed course of action. This might best be described as “back against the wall, knife to your throat, gimme all your money!” time.

After You Clicked “Accept”

Once you clicked “Accept” on the new ToS and logged in to Second Life, for some period of time afterward you most likely operated in the same manner as before. For me, the earliest date that I was aware that the new ToS might have a significant impact on me and my business was September 12th, 2013. That was the date that Toysoldier Thor created the very popular thread “Updated LL TOS Claims FULL RIGHTS to ALL CONTENT” on the Second Life Forums. Therefore nearly the entire 30 day cancellation period was exhausted before I learned about the full ramifications of the new ToS. Chances are pretty fair that you’re in the same or similar boat; unaware just how damaging the new ToS might be.

This is NOT to say that it’s all Linden Lab’s fault. In truth each one of us should be more proactive and at least read through the Terms of Service document in its entirety every time it is changed. However it very common for most people to “fog up” just a few paragraphs into anything as deeply technical as the Terms of Service agreement. Even if you do manage to read the entire thing and not have brain goo leaking from your ears, not everyone is capable of understanding the full impact of Section 2.3. In fact, even to this day nearly two months after the new ToS was posted, there are still some people claiming that the wording of that section is necessary for Linden Lab to operate Second Life.

Obviously then, even among those for whom English is their primary language, full comprehension is not always guaranteed. Once again, to get a full legal understanding of the Terms of Service, you would need to retain an attorney with expertise in agreements of this nature. You would further need to pay their time and direct them to render a Legal Opinion. This is typically a formal document that provides their Legal Opinion, based on their knowledge of the industry, the specifics of agreements of this nature, and their comprehension of the laws governing the parties involved. Because you would be asking the attorney to produce a document that they may later need to defend in court, you will be paying for a LOT more than just their time; you will be paying the (virtual) Insurance that their opinion is correct.

Just New or Old Too?

There is still a significant bit of confusion regarding the reach of the rights claimed by Linden Lab in the new Terms of Service in relation to User Created Content. One school of thought holds that the rights claimed in the new ToS apply only to newly uploaded Content. Yet another school adds in Content that is uploaded or modified after the date you accepted the new ToS. The final camp stretches the rights claimed to include all User Created Content, including that content you haven’t touched in years .. and in fact can even include content you uploaded and then subsequently lost from your own inventory but still exists “in the wild” somewhere else on the Grid.

I really have to say, I’m confused too. To my knowledge there has not yet been a fully qualified legal determination made as to the actual reach of the new ToS. I haven’t seen anyone posting that they’ve bought and paid for a Legal Opinion on that factor either. Quite honestly, I’m not sure that a solid legal determination can be reached until such time as it is tested in a court of law. Needless to say, absent a solid plank to walk, your dance steps depend on which way you think the plank is pointing.

If you believe that the ToS only covers newly uploaded content then you can do as many others have done: Stop uploading new content. This course of action has a fair amount of reasonable logic behind it. After all, it seems rather unconscionable for Linden Lab to roll out a new Terms of Service agreement that suddenly changes the ground rules for everything you’ve ever uploaded since the beginning of time. Following a common analogy I’ve seen a few times, that would be like coming home one day to find a notice taped on your front door. The notice is from your Landlord and informs you that they now have rights to use anything inside your apartment (clothes, furniture, cooking utensils, etc.) at any time they wish without notifying you beforehand. They further don’t have to wash anything or even bother returning it. And you accept these new conditions just by opening your front door. WTF?!?

The logic embodied in that analogy notwithstanding, a careful reading of the new ToS does not turn up any clause or specific language that excludes previously uploaded content either. Considering that in agreements of this sort, any time something is not specifically stated, it often is ruled to be to the benefit of the Lesser Party, it might be safe to assume we mere customers are the “Lesser Party”. We didn’t have much say in the drafting of the agreement, and we damn sure didn’t have any say in accepting it, so the court would probably consider us as the Lesser Party .. maybe. But even so, as I say there is (to my knowledge) no solid legal opinion on the full reach of the ToS, and I for one am not totally comfortable assuming anything when it comes to Linden Lab or legal contracts. (Both together makes my butt cheeks whistle Dixie! Honest!)

Even so, I am operating on the assumption that the new ToS only grants Linden Lab the rights they claim in Section 2.3 (and elsewhere) for newly uploaded or modified content. Anything that was extant on their servers prior to August 15th and that I haven’t modified since is immune to the rights grab they claim. I may be wrong, and if so .. well then I’ll be in a BIG boat with a lot of other people too. And all of us will be PISSED!

What Is Involved In “Testing” the Terms of Service?

This is where it gets pretty involved but I’ll try to simplify things as much as I can. I’m also going to have to limit my explanation to what I understand of the process and what I know to be true. (I’ll also mix in whatever stuff I’m pretty dang sure is true, but I’ll try and make sure it’s obvious which is which.)

First and foremost is the concept of “Testing” an agreement. Typically that means to mount and press in a court of law those terms or conditions of an agreement that the suing party feels are invalid, illegal or in some fashion hinder them doing whatever it is they want to do. For example, a lawsuit could be filed against Linden Lab claiming that Section 2.3 (and other related and support sections and language) are illegal in that they over-extend those rights that can be reasonably granted to or assumed by Linden Lab.

A lawsuit of this nature would be considered a “Preemptive” action designed to prevent Linden Lab doing something they shouldn’t oughta  be doing. While emotionally satisfying, such actions have a giant hill to climb to get any traction in court, and they have even less chance of being won. What the suing party is essentially asking of the court is to become mind-readers and predict what Linden Lab is thinking and planning to do then stopping them before they do it. That’s a pretty tough thing to do with a person, let alone trying to make it work with a corporation. Yeesh!

Another monkey wrench that needs to be considered before mounting any sort of legal action is the Terms of Service itself. Specifically:

10. DISPUTE RESOLUTION AND ARBITRATION

This section says that basically any dispute you might have with the ToS has to be worked out through a process of Arbitration. That process has to be carried out according to the rules and procedures of the usual arbitration organizations, but all laws and regulations that can be applied are those of San Francisco, California. If you live outside the USA, that can be a pretty confusing set of conditions to work within. Heck, it’s confusing if you DO live in the USA. Suffice to say though that if you intend to file a lawsuit against Linden Lab for anything arising from the ToS, the first section of the ToS that you’ll have to challenge and defeat is Section 10 governing your right to sue without trying to work things out through arbitration. (Getting dizzy chasing your tail yet? Yeah, me too.)

Is Post-Emptive A Word?

The most successful legal action then would be an action mounted after Linden Lab does something that pisses you off is illegal. So far, to my knowledge, they have not exercised any of the rights claimed in Section 2.3 with content originally uploaded to Second Life. They have even released a public statement disclaiming any intent to use those rights. But through their inaction and total lack of visible response to the outcry that has arisen from the new ToS, it is obvious to me at least that they have no intention of letting go of those rights either. So whether they say they’re going to use them or not, the mere fact that they grabbed them and won’t let go leads me to suspect they will use them eventually. In other words, I totally trust them .. to screw somebody big time. I’m just hoping it’s not me.

However, once they do follow through and put the old burning hot poker to someone’s posterior (or the posteriors of a LOT of someones), then it will be time to mount a serious legal action against them. That type of lawsuit is much easier to mount and, if proper documentation and hardcopy proof is available, can also be easily won.

Document, Document, DOCUMENT!

The section I bolded above is very important. No attorney is going to take a case they don’t feel they can win. No matter how morally abused you may feel, you are just not going to find a White Knight wearing a lawyer outfit unless you give them sufficient weapons to do righteous battle. And what sort of weapons might those be? Documentation, hardcopy proof, designs, textures, builds, any and everything that goes into your creations. If you used a Texture purchased from a third-party provider, document the texture, date of purchase, amount paid, where used .. in short anything and everything that can be used to pin down without question that it was that exact texture and none other.

Now for the part that’s REALLY gonna make you whistle Dixie too. All of it needs to be in hardcopy. That means printed out on paper, dated and placed into some form of provable escrow. You will need to hand to any future attorney piles of paper they can hold up in court to say “See? This proves my client had this in their possession and further shows that …” whatever bad thing they are claiming Linden Lab did with it. They can’t hold up a laptop and wave it around in front of the judge or jury and ask them to just TRUST that the electronic document wasn’t created last night. They’ll need something solid, defensible and demonstrable in a disconnected, unplugged, non-WiFi environment.

Final Thoughts

As I said just above, I totally trust Linden Lab to screw someone over. They have demonstrated not only a propensity for making mid-course changes that flatten giant swathes of their customer base, but they’ve also shown a complete disregard for the damage they do themselves in the process. Since we all know that Second Life and their new User Generated Content Dependent software titles all hinge on Customer Trust, it stands to reason that they will once again shoot their own feet off by shooting all of those people willing and anxious to contribute truly valuable content.

Any software title or service that depends on the quality of the content available must act to attract or create the best content possible. When you examine any of the successful games or software services out there, only those with truly high-value content succeed. I don’t just mean pictures and things found in-world either. I mean the intangibles like Customer Service, Value (is it worth what I pay for it), and that great pillar of success Customer Trust. Linden Lab has, through the actions of their new CEO Rod Humble, declared their intent to base ALL of their future efforts on software titles and services that focus on User Contributed Content.

Their very first action then to mark off their territory and establish their intention of owning that niche is to:

  1. Destroy Customer Trust
  2. Destroy Customer Service
  3. Chase off High Value Creators
  4. Cheapen the Existing Value of Content

So, the writing is on the wall as far as I’m concerned. Once again Linden Lab will go about blindly professing to have the ultimate tools and platforms to accomplish their goals, thrash for a while not understanding why they are failing, hire shills to blame the customers, then fire the existing CEO and bring in someone else with a new vision that totally misunderstands the value of the content and titles they have now.

Mark Kingdon must be laughing his ass off right about now.

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Comments

2 Comments on Testing the New Terms of Service

  1. Kylie Sabra on Mon, 14th Oct 2013 2:37 PM
  2. Great article. Going to post the link on the United Content Creators of SL’s Google Drive.

    The UCCSL is a growing group of content creators in SL, that has assembled to effect change to the August, 2013 SL Terms of Service. Come visit the Guild Hall at The Rose Theatre in Second Life to learn more, join a tactical team and sign up as a Guild Member.

    http://maps.secondlife.com/secondlife/Angel%20Manor/68/141/39

    […] sudden you get the pop-up screen and have to sign before you can enter or finish your transaction. Darrius Gothly describes this practice in a striking […]