THE CHARACTER OF THEIR CONTENT (Updated)

Does the Lindens' recent, controversial announcement prohibiting "broadly offensive" content put them in legal danger?  That's the argument of IP attorney Benjamin Duranske, whose blog Virtually Blind has been bringing up some provocative law and virtual world issues lately.  In doing so, Duranske argues,

Linden Lab... is actively editing user-created content and encouraging users to report “broadly offensive” content for removal. That potentially puts Linden Lab on the hook for any content they miss that violates the Communications Decency Act.

If the Lindens take a proactive editorial hand in removing or prohibiting patently offensive Resident-created content (simulated pedophilia, rape, other undefined noxiousness), on this thinking, that makes them legally liable for everything that's in-world.  Is that true?  Maybe, and maybe not.  Obviously, my jurisprudential kung fu is not strong, but this line of reasoning seems to miss several points:

What happens in SL's Open Server era?  The Lindens have constantly emphasized an intent to open source Second Life's servers, and relatively soon.  Presumably, once that happens, any "broadly offensive" content may still exist in Second Life-- just so long as it's relocated to servers not owned by Linden Lab, thereby freeing them from even the broadest interpretation of legal liability.

On that view, the announcement is not prohibiting offensive content from Second Life, but merely preparing for a time when those who wish such content must take full responsibility and ownership (moral and legal) over it.  In the open source era of Philip Linden's country, in other words, the absolute extremes of sex and violence will be accessible in rogue nations and savage isles beyond its borders.

Moreover:

Is Passive Enforcement Editing?  Daniel Linden's post, while vague on just what counts as "broadly offensive", is clear on putting the onus of reporting putatively offensive content on the Residents: "[N]otify Linden Lab about locations in-world that are violating our Community Standards regarding broadly offensive and potentially illegal content."  This seems intended to put Linden in line with the Communication Decency Act's immunization clause:  "Effectively, this section immunizes ISPs and other service providers from torts committed by users over their systems, unless the provider fails to take action after actual notice..." [emph. mine]

How much protection does a Terms of Service wording provide?  TOS clause 1.2: "Linden Lab is a service provider, which means, among other things, that Linden Lab does not control various aspects of the Service... [and] has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Service."

Not being a lawyer, I'm unsure what bearing these last couple points have; I proffer them, so that legal minds with far wiser things to say can consider them as they will.  (Or not.)

Updated, 5:01pm: Fixed the blog title.  Benjamin Duranske has expanded thoughts in Comments.

Comments

[Benjamin Duranske (avatar 'Benjamin Noble')]

The blog I edit is "Virtually Blind," not "Legally Blind" -- otherwise, interesting piece that raises some good points about these issues.

[Benjamin Duranske (avatar 'Benjamin Noble')]

One of the problems is that they actually seem to be going well beyond passive enforcement, not just relying on user "tips" but doing some policing themselves. You can see that they're targeting at least some advertising and actively replacing it with placeholder content by searching classifieds for the phrase "description removed." Some have argued that this move seems largely targeted at casinos, which is accurate, but it doesn't really matter. It isn't *what* they are editing that takes them out from under the CDA's Section 230(c) safe harbor protection for service providers, it's the fact that they're editing user content at all. I'm the first to admit that this is a fairly immature body of law, but it's not an far-out theory by any stretch of the imagination. Policing content, particularly when they do it on their own, is at least potentially problematic.

I think you're 100% right about the plan to move the really offensive stuff to third party servers. Maybe that's the theory -- make the LL hosted areas so annoying to be in if you're doing anything that offends anybody to the right of Dennis Kucinich that everyone who is moves their sex, drugs, and rock and roll to the (eventual) private servers. Makes sense to me. Of course, unless some places get critical mass, there will always be a population draw to remaining at the biggest party, even if it does mean either flirting with a ban.

[Benjamin Duranske (avatar 'Benjamin Noble')]

Small correction - you have to search "Places" (not Classifieds) for "description removed" to see the active editing that's going on. I could be wrong, I suppose, but I'm betting that those all weren't from user tips, and were, instead, based on searches.

I say this because some have reported that places with the letters "loli" in their name/description were targeted -- presumably because it is the first four letters of "Lolita" (though it is, unfortunately, also the first four letters of at least one clothing line that had nothing to do with either ageplay or Nabokov's book). That sounds like machine searching to me.

[Hamlet Au]

Sorry about the title goof, Benjamin, fixed it-- thanks for commenting!

[FreeLikeBird Martinek]

Even more then editing details, for example if you go to places and you search for "Hedonistic Island" you will find that the image of that Sim has a female avatar without her top, the female avatar was naked in upper part and now has an editing image saying "censored" over that part
I know that the "censored" edit didn't existed before because I use to go to that sim
I just don't know if the image was edited by the owner or staff of that sim or by Linden Lab but I believe it was Linden Lab because in search, if we search by "any category" for example that SIM appears