Code as Code: The New TOS Linked to Newly-Formulated Policies is a Mess and Contradictory

The new Linden TOS required to log on to Second Life is a mess of rules leading to a large potpourri of policies, which further confuse and even contradict what is said in the TOS, leading to legal loopholes, legal nihilism, and legal nonsense.

Or, wait a minute. The new TOS is a slick, corporate, calculated lawyer-chiseled set of regulations privileging the corporation, linked to a carefully-hewn set of policies that leave huge latitude for corporate discretion, which is the heart and soul of the unconscionable TOS, as the judge in the Bragg case called it.

Both or true, and as it tries to be several things to several constituences, it isn't all human rights for all, and can probably serve as a flexible codification of the ability of Linden Lab to do anything it likes, "for any reason or no reason".

This isn't even "code as law," a concept I loathe because it privileges bytes over human actors; this is just code as code -- i.e. not law, with consistency, due process and reason, but a set of unjust, arbitrary rules matched with technical coded means of control to induce their enforcement.

The only good thing about it is now, in addition to the TOS, all the various edicts, writs, read-outs, "something Jack said on the forums and Pink said in an office hour or Blue told me inworld" which have made up "the common law" of SL surrounding the TOS and Community Standards are now all in one place, in "stone" so to speak, with lawyerly diligence linking TOS to corresponding policy on a non-editable wiki.

I wish I had saved the various redactions of the TOS over the years (maybe someone has) and studied these archeological layers as the Lindens went through the Age of Heroes, the Iron Age, the Bronze Age, the Industrial Age, Information Age and so on. Basically, we have no choice -- if you want to log on and access your property or wait on your customers, you have to check the box, but there are problems.

I suppose first to strike most landlords smack in the center of their foreheads, is the bit about how we "don't really own land any more". Well, we never did, but of course, those of us who were of a mind to try some sort of long-term bait-and-switch sort of thing could indeed reference website ads that ran for years saying "Own your own land!" (The Lindens could get around this by saying that land was a virtuality, a fiction, and the ad didn't say you owned the server from which the land was generated).

It's not surprising that the Lindens reached this decision to verbally devalue their already-crappy-in-places land with this language; it now sells for .85 Lindens a meter, where once it proudly sold for 8, and was artifically kept at 5 for years and years. When the Lindens stop valuing their own land; then they themselves stop trying to sell it at all; when they view it as merely a shelf or bracket upon which they arrange content, and not a commodity or a location, then it isn't surprising that, just like the currency, which is also a "limited license to access content," they think up this "limited license to access" stuff instead of saying "ownership".

One could panic, but...land is already selling for nothing or being abandoned, so, no need. The point is, the Lindens want to indemnify themselves. They make the point that you can't expect a buyback. So if the music stops and you land on a chair where you didn't make back your investment yet, you are SOL, and they are not responsible. This ain't no Happy Birthday.

Still -- and this is truly scraping the barrel -- I don't recall seeing this language in the TOS before, which in fact, while it sounds like "not such a great deal," represents at least slow and painful progress toward the rule of law which I personally, and many others, have tried to urge and compel the Lindens to move for six long years. This language in fact circumscribes -- in a way -- that "any reason or no reason" stuff, and shows you that Bragg, after all, left its mark. Your land is only a "limited license to access stuff" but it's something, it's yours, and they can only take it away as follows:

Linden Lab may revoke the Virtual Land License at any time without notice, refund or compensation in the event that: (i) Linden Lab determines that fraud, illegal conduct or any other violations of these Terms of Service or other Second Life policies is associated with the holder's Account or Virtual Land; or (ii) the holder becomes delinquent on any of that user's Account's payment requirements, ceases to maintain an active Account or terminates this Agreement.

Regretably, that means that a permaban from the forums "violations of these Terms of Service" can lead to a confiscation of your land. But I think it also means that the "any reason or no reason" clause actually isn't set out in relationship to land "ownership," and that's progress. They have to show that you violated the TOS if they take your land.

Even so, this hurts:

You acknowledge that Virtual Land is a limited license right and is not a real property right or actual real estate, and it is not redeemable for any sum of money from Linden Lab

But...it hurts to find that the Brooklyn Bridge you bought is not going to be the lovely backyard accessory you thought it was going to be, too. I do wonder why it can't be otherwise. Could it *really* be so hard -- if you are not burdened by the exigencies of technocommunist diktat -- to recognize and guarantee private property?

Well, as Eric Rice once famously said about all our efforts to conceive of ourselves as like citizens with property, or like serfs under a king, or like nomads with grazing rights, here's the deal:

"Linden Lab is a software company. We are its customers. The end."

I don't actually subscribe to that concept, being somewhat of a romantic hippie type not unlike the Lindens 1.0 myself. I think we can push the envelope and draw on the fact that the public commons maintained by these game and world companies is like a mall or public square where the First Amendment and other matters of law should obtain, perhaps only limited, as in real life, as to "time, place, and manner". Billions of people now spend more time online or on their cell phones than they do sitting in their town halls or places of worship, so these new electronic gathering places matter and they need to be better, and they need not to be run by unconscionable and condradictory TOS.

I'll touch upon one more big contradiction before I have to pause because I'm busy, but I'm going to come back to what else is wrong throughout another day -- unless of course someone else will perform this public service.

Hat tip to Crap Mariner for pointing out to me that there were new machinima laws -- laws that seemed to recognize that it was ok to take snapshots and machinama in public places without having to get an avatar's permission (see this whole fandango with Jen Forager of Metanomics complaining about Crap's machinima).

TOS 7.4

You agree that by uploading, publishing, or submitting any Content to or through the Servers for display In-World in any publicly accessible area of the Service, you hereby grant each user of Second Life and Linden Lab a non-exclusive, worldwide, royalty-free, sublicenseable and transferable license to photograph, capture an image of, film, and record a video of the Content, and to use, reproduce, distribute, prepare derivative works of, display, and perform the resulting photograph, image, film, or video in any current or future media as provided in and subject to the restrictions and requirements of our Snapshot and Machinima Policy. The foregoing license is referred to as the "Snapshot and Machinima Content License."

All well and good, except...when I read the fine print, I saw how they were defining "public". Damn.

Publicly accessible" areas of the Service are those areas that are accessible to other users of Second Life. If you do not wish to grant users of Second Life a Snapshot and Machinima Content License, you agree that it is your obligation to avoid displaying or making available your Content to other users. For example, you may use Virtual Land tools to limit or restrict other users' access to your Virtual Land and thus the Content on your Virtual Land.

Ugh. So very unfortunately, the Peek-360 and Electric Sheep Grid Shepherd models of conduct, based on opensource hack culture and tekki eminent domain, prevail. Unless you lock down your land, and *close it* to the public, which you may not want to do if you are a store or even just on a homestead you want people to visit and enjoy, you can't get rid of the data-scraping bots, who not only invade privacy, which is tough to demand in SL anway, but use everything they get in their own business, even at your expense.

That's wrong, and injust.

But wait. When you click on the link to the Policy about this, it's all contradicted -- it's what you call in the business "a claw-back". Now we see another regime here:

If you wish to take a snapshot or capture machinima of content on another Resident’s land, then:

1. For Snapshots, check whether the covenant for the land prohibits snapshots. If it does, then you need special permission from the land owner to take the snapshot. If it allows snapshots or doesn’t address them, then you do not need special permission from the land owner as long as you comply with any terms that may be in the covenant.
   
2. For Machinima, check whether the covenant for the land allows machinima. If it does not or doesn’t address machinima, then you need special permission from the land owner to capture machinima. If it allows machinima, then you do not need special permission from the land owner as long as you comply with any terms that may be in the covenant.

For Mainland or Linden Homes parcels where Linden Lab is the estate owner, you do not need land owner consent to take snapshots, but you do need special permission from the land owner to capture machinima. The “land owner” is not the estate owner, but the Resident identified as the land owner in the “General” tab under “About Land.” For private islands where Residents are estate owners, you must check the covenant for the private island as provided above.

(b) Avatar Consent for Machinima.

For machinima, you must have the consent of all Residents whose avatars or Second Life names are featured or recognizable in the machinima. This includes avatars who are featured in a shot, avatars whose names are legible, and avatars whose appearance is sufficiently distinctive that they are recognizable by members of the Second Life community. Consent is not required if an avatar is not recognizable and is merely part of a crowd scene or shown in a fleeting background. Consent is not required for any snapshots.

I'll leave aside the humorous slip backward to that old idyllic concept of "land ownership" which repeatedly appears in this discussion even how on the mainland, the owner isn't the estate owner (Governor Linden) but a resident (so...we *are* owner! lol.

But it does say that to go around filming machinima, you must get the owner's consent if you are on their land -- unlike screenshots. (Unfortunately, the flippant California lawyer trick is still visible -- if you have not said anything about this matter on your covenant, then you can't claim a shield or remedy under this law, you can only claim it *if* you put prior notification.)

So...Great! If it means that I now don't have to deliberately close my land down, or methodically ban Paparazzi Artful everywhere, if now in fact what I have is a rock-solid guarantee from the Lab that *if* I have not given consent machinima cannot be taken.

Yet...the TOS says otherwise -- that unless I closed my land off, my land is public and machinima can be taken. So, er...which is it, the TOS or the policy?

In part this muddle comes about because we are straddling real-life and cyber-conventions. Real life conventions say you can't come and take movies of me in my backyard without my permission. It's trespassing. But in the cynical world of "if I can do it, then it is legal" and its correlary "If you didn't stop me, I can do what I want"of Second Life, the cynics at Peek360 can say "You didn't close your land off, therefore I can come in, therefore I can film you." That notion wouldn't prevail in real life, where I would not be required to first fence in my property to gain refuge under a notion of "no trespassing"

What is the right thing to do here, which you can lose sight of when you are muddled between TOS and policy like this? The answer is: you default to as much a liberal regime as possible where snapshots and machinima are allowed in all public places. But you don't cynically and manipulatively define "public places" as merely meaning "what isn't locked down," and you enable people to label their avatars or land as to preference -- something that the lock-down or group only does not truly provide. Trust me, if you can put in all that useless labelling the Lindens have now, like "Park" or "Business" or "Hang-out," you can add "Public" or "Private" and key it so that people can signal their intent, like a kind of privacy DRM, and then report you under the TOS if you defeat this with machinima. In theory, you could even make it possible that registered scripted agents could not enter lots with the flag "private" even if open for entery.

But..The Lindens are unlikely to do that, as easy as it would be.

Now here's one that will have the ageplayers and edgecasing creepy kids screaming like banshees:

TOS 8.2

(iii) Post, display or transmit any material, object or text that encourages, represents, or facilitates sexual "age play," i.e., using child-like avatars in a sexualized manner. This activity is grounds for immediate termination. You may review our full Age Play Policy here. You understand and agree that we may report any and all such incidents -- and any and all of your corresponding personal information -- to any authorities we deem appropriate, whether or not it in and of itself violates the law of your (or any) jurisdiction;

Sounds good, if your concern is morality, because essentially, LL is a private club, not *really* a common carrier (they just make and control too much content at this point to keep claiming that label), and it's good to have private clubs serving as the platform to make diverse public communities to be one where simulation of child rape is not tolerated. There's been a surprising amount of objection about how this is not against the law in the US if you use a cartoon to do this, as long as you are an adult, although it is a crime in the EU and elsewhere. There's a really nasty and vicious lobby trying to roll this back and move the goalposts because they want to desensitize and decriminalize the concept of the adult as ageplayer.

Yet this language lets it be known that Linden Lab will -- at its whim or at its discretion -- report you to RL authorities and turn over all your RL information and any other information from their servers -- if you are ageplaying, whether or not that act is a crime in your jurisdiction.

So just to break this down a little more: if you are violating the TOS and engaging in sexual activity with your child avatar, you aren't just violating the TOS and getting banned from SL, you will get a dossier delivered to your local authorities about your creepy fantasy life on this server -- even if it is not a crime in the state of California (which it is not -- although it is definitely good to have a debate about whether it should be, and it is definitely good to condemn this activity as objectionable and immoral).

This is overreach, and quite a serious breach of faith with customers, in one sense, because Linden Lab has never said in its TOS that it would turn its customers over to the authorities for this or that activity even if it wasn't against the law. On this narrow point -- and it is a very narrow point, because the child lobby is immoral and reprehensible -- the creepy ageplayers will have a point of justice and due process (perhaps, although private clubs can do what they want) and can be expected to lobby like hell around it, screaming like stuck pigs, which they can do -- without me. Not interested in helping this cause on tiny narrow points, even if just, that obscure a nastier larger picture.

Given the horrible pass the Lindens have given to ageplayers -- letting them thrive for years, making first only a notecard, then finally a policy, then finally a TOS language and enforcing against sexualized ageplay -- it's strange. Especially given the way they have indulged the creepy kids coming to Zindra, which is really appalling. What could happen now is that people can go into Zindra, on the strength of "what a Linden told me that day when it opened" or "what a Linden said once on the forums" or "what Lindens told me on the support line" or "the answer we got in an office hour" -- all nothing you can pin down or take to court, and not constituting even customary law -- and then have a Linden find them in a sexually compromised position, which will not be hard to do in Zindra anywhere, then call the police and report them for doing something that isn't a crime, but might need some checking up.

What made the Lindens do this?

Speculating completely, I imagine it was that the Lindens found it too hard to control sexualized ageplay, had too many cases of it and too many relapses (there are a lot), found too much taunting and anger and pressure from the edgecasers who couldn't understand why they couldn't simulate child rape in America just because it's not allowed in Europe -- and felt they needed a stronger weapon to wield. By saying  "We can report you to the police if we feel like it for any reason or no reason in relationship to ageplay, whether or not it is against the law in your country" they are making a powerful deterrent.

What they *meant* to say was something like, "We are making this our TOS because we think it's right. It may not be against the law, but you need to stop pressuring us on this because we've simply decided that this is what we want for our community." But they had to add, "and if you persist, we will call the police" to make it stick. I think this lobby is among the most sinister in the world, and will stop at nothing -- blackmail, violence -- to get their way, and I have no doubt the Lindens faced powerful and connected and nasty pressure on this -- we can see the enormous amount of vile incitement that happens from creepy kids just for being booted from a sandbox where somebody doesn't like them, and their invocation of every tear-jerking politically-correct card in the book.

There's another more sinister scenario here. It could be there was war in the Lab over this, and those losing on the language formulation decided to use some ju juitsu and just let the overbroad, overreaching language go in -- and then sit back while a tide of lobbying anger battered the Lab -- and ensured that once again, creepy kids would be seen as victims, instead of victimizers.

Once again, the sinister ageplayers will win -- by getting liberals who otherwise abhore ageplay and don't want to give even the cartoon version a pass to say "wait, this isn't right, and means they could be calling the police about just anyone over anything," the ageplayers will smugly obtain yet another victory toward "social  acceptance" and succeed yet again in moving the goalposts and desensitizing people to their evil. So, bad business all around -- and could have been avoided simply by phrasing that language as something like "We reserve the right to report activity that we have reason to believe could be in violation of the law to the authorities" -- and call it a day.

There's more -- there is a set of something new called "Mainland Policies" which seem to be a codificatino of existing policies on land cutting but a bit more -- I will return to this.

In closing, I'll note that in addition to first telling us we don't own land, then referring to us as "owners of land" in the policy (LOL), the Lindens slip back to admitting that Second Life isn't a platform or a service or a space, but a game:

Alternate Accounts

While Residents may choose to play Second Life with more than one account, specifically or consistently using an alternate account to harass other Residents or violate the Community Standards is not acceptable. Alternate accounts are generally treated as separate from a Resident's principal account, but misuse of alternate accounts can and will result in disciplinary action on the principal account.

Comments

[Brinda Allen]

Well parsed Prok...I tryed to wade through the TOS at log in...
I just had a feeling something new was afoot.
While I did catch a lot of it...it takes a law degree {which I don't have} and hours of research {which I'm not going to attempt} to decipher the text.
While there does appear to be some boiler plate, there are enough ambiguous statements to provide some one with enough time and money to cause a ton of litigation. I would be surprised if a lawyer actually wrote it.

I always knew I didn't have the resources to do anything if they did what they wanted.

[cube inada]

"In closing, I'll note that in addition to first telling us we don't own land, then referring to us as "owners of land" in the policy (LOL), the Lindens slip back to admitting that Second Life isn't a platform or a service or a space, but a game:"

yes. A game like that played by Enron or Lehman. Bernie Madoff's a game god.

so who won?;)

[melponeme_k]

I'm waiting for the crazy copyright screams over screenshot work. Because I know the more sensitive will be ARing for it.

I will no longer take travel screenshots. Don't want to deal with figuring out the middle path and seeking out the owners of every little thing that is captured by my viewer. Most of my SL flickr is gone. But that brings me to a somewhat related topic. Do you know how hard it is to get rid of anything on Flickr and Koinup? So many menus to go through and buttons to click. And it seems Koinup doesn't give an option to erase an account. I sent them an email about it.

[cube inada]

nothing crazy about them.
2 years a go a brazilian pop stars producers made a music video using my original "Starbase C3 ships" IP for "free"-- as props... well not free. 3.00 usd.lol
they made a commercial music video- sold real celebrity etc..and did ir for most likely 10 cent on a dollar..

never any credits, never any real fair dollar trade.

for linden to claim license for all others to do what they may-is really unethical.

anyhow- i dont think they ever had any ethics.from day one its been a web2.0 scam on "users"..who "generate"...

[Darien Caldwell]

There will be no crazy screams over screenshots, because the TOS makes it crystal clear that people and things in public places are fair game, unless they put in the covenant "No Screeshots". The part about getting every avatar's permission is for machinima only. This has always been the basic policy, until that virtual lawyer guy started trying to push a viewpoint that screenshots was 'theft'. I knew then he was full of crap and it's good to see LL adding verbage to neutralize his attempts to criminalize the taking of a screenshot.

So take as many screenshots of people, buildings, etc as you like, if there's no Covenant or sign saying you can't, you can.

[melponeme_k]

Checking the land menu for every place I visit is ridiculous. Public space is public space.

And I've seen the creators in action on the old NPIRL blog, shouting that they would sue any screenshot maker.

This change and now my troubles with Koinup/Flickr etc just show that my hobby was merely giving publicity to various parties. Which they used to launch services or builds. I receive nothing for it. Therefore I want no part of it anymore.

[Darien Caldwell]

"And I've seen the creators in action on the old NPIRL blog, shouting that they would sue any screenshot maker."

Threatening lawsuits is pretty much the current passtime in SL. Lots of hot air and no substance. Especially in cases like this where said creator hasn't a legal leg to stand on.

As you point out, you're basically giving their build or whatever more exposure, so why on earth they would be against that, I don't understand.

LL's rules are basically based on RL law. You know Google drives a truck down public streets, and photographs people's buildings, and the people who are standing there, all the time, because that's perfectly legal.

I could walk down to my local Mall and photograph the outside while standing in the street, or on the public sidewalk. I could photograph the people coming in and out. I could photograph the cars driving by. I could go to City hall and photograph that too. Although I *will* say, that in recent years, the fear of terrorism has caused some municipalites to over-react to filming or photographing of public spaces. (apparently they feel if you're taking a picture of the beautiful City Hall, you must be a terrorist wanting to blow it up. These instances are rare and have been fought in court.)

So my best advice is, don't allow these people to cyber-bully you into stopping something you enjoy. Because that's all it really is. Perhaps they don't deserve the added attention you will bring them, but the bad actions of a few shouldn't be allowed to destroy your enjoyment of something you have every right to enjoy and engage in. :)

[cube inada]

"As you point out, you're basically giving their build or whatever more exposure, so why on earth they would be against that, I don't understand."

because your a mediated child raised on thinking fame has a value that everyone should pay for.

once upon a time you were the town fool, or a court jester, until you were boring, then you were hung.

you and so many- really dont get it...but then again youve been programmed not to.

googleborg.

[Darien Caldwell]

Would be nice if you could explain, rather than insult. Heh.

[cube inada]

its no joke that on april fools day that two more vr worlds that used the unethical con called "user generated" content to attempt to- or actually monetize for the enrichemnt of a few from the many, went to hell.

Vivaty, closing after reportdly 9m usd spent.

And LL new tos that hijacks all value of visual resourse IP by suggesting that anyone who enters the LL freebie giveaway service- can without any of the IP creators permissions create COMMERCIAL derivative works from the original commercial works of those creators/owners.

3Dconcepts, Renderosity, etc have been in the 3d asset biz for a decade plus, as have I. LL has seemingly Hijacked all assets that they "licensed" or were going too(renderosity) with SL for years. Facebook and even AOL backed away from such unethical TOS issues a decade ago.

its a total rebuff of all visual media professionalsand the clients they borught to SL under ANOTHER TOS.

i read the new TOS again, it "may" offer support for a IP owners own Licenses, but as you as a typical user seem to beleive you now have the free rights to commercially do what you will with all images captured within SL...then the damage is done, and I suggest a real world court will be needed to end this sillyness, if LL dosnt just add "non commercial" to its supposed rights it REQUIRES for its customers who ONLY ARE THERE to utilize/commercialize THEIR IP, not Lindens.

They claim they now not only have a license to commecialize on others IP BUT to further devalue it from non linden centric usage by DUMPING IT on the market of visual IP by claiming it free for all to use, just for downloading the SL client...a short term "hit for a IPO for a few"

even GOOGLE DOSNET CLAIM SUCH RIGHTS transfers for assets it stores on its servers for all to USE to do no harm?!..lol

an arrogant and stupid day for the future unless the push back is made loud and clear.

[cube inada]

Darien- before you go making Star Wars meets the Greenies Movies for sale.:)

Followup- from new policies doc-

what does "3d content that WE created" actually mean?

linden trees? linden terrain? a content creators original scooter design?
prims connected and altered by code? textures used to represent spoked wheels?

i have read a good number of posts including the one above suggesting SL isa free for all movie studio now-- well maybe not-- well mr lawyer?;) anyhow... there will be many other companies with long histories in the 3d visual biz- that will i assume take up issue with this new policy and tos conditional change. RISK being theirs i assume..;) Profits and IPO for quick user increase being LL;s;)

BTW- i was under the impression that YOU CANT make movies from MS or blizzard IP beyond for self personal usage.... smart and sustainable for an industry and a culture.

"c) Other Intellectual Property Licenses.
It’s important to remember that the Licenses are only copyright licenses for the 3D content we created that is displayed in-world. They do not include any permission to use the trademarks of Linden Lab or Residents, and they do not give any copyright permission to use music or sound recordings that may be performed in-world. They also do not give any copyright permission to use any website or video content that may be streamed from outside the Second Life virtual world environment.

If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.

For general information on intellectual property, please see our Intellectual Property Policy. If you seek legal advice about a specific situation, we suggest contacting a lawyer. Linden Lab cannot provide you with legal advice.

[Darien Caldwell]

I think it's a fallacy to think anyone is making money off screenshots in SL. People just like to show off cool things they see to their friends and others. Exactly like you see Prok doing nearly every day here on her blog. I understand you feel you got burned by some Brazillian pop star who used your space ship or whatever, But that is not even anywhere near the same as someone taking a screenshot and posting it on their blog.

I don't make movies, not even bad ones. :) But even those who do, do it for fun, not profit. That's why I shake my head in sadness at people getting all bent out of shape over something that basically does no harm, and in fact can help by way of free promotion. But really 9 times out of 10 its really goes neither way, because most items in SL are mediocre and unrecognizable outside the context of their creator's own advertising. Same can go for spaceships. :)

[cube inada]

you still dont get it.
you can insult yourself now;)