Linden's Revised ToS for SL Still Troubled, Says RL Lawyer

Though Linden Lab amended its controversial Terms of Service which made draconian claims over SL-created content, real life lawyer and SL Bar Association member Agenda Faromet says the changes merely muddy the situation. Writing on the blog of her alt, Vaki, Agenda has a detailed analysis, and gives the TL;DR version too:

Really, not much has changed as of today. We have a poorly-written, overly broad ToS without much in the way of limitations, and we have a whole lot of reassurances from LL that don’t mean a lot (other than serving as an indication that their legal department is apparently not very good at translating the company’s intentions into legal terms)... It took LL a year to come up with this much. I don’t have high hopes on getting a revision any time soon.

Read the rest here. I don't have high hopes another revision will come, but perhaps not for the reasons Agenda has:

To achieve real change, Second Life users must substantially demonstrate through their behavior that this Terms of Service clause has negatively impacted their usage of SL. Since this controversy began, there not been a noticeable drop in the amount of Second Life content created, bought, and sold, let alone any dip in actual usage of Second Life. Having worked at Linden Lab, I can confirm the company has extremely powerful tools for tracking Linden dollar transactions on a minute level. If the company saw any downward trend noticeably happening around this controversy, it's safe to assume they would have addressed it more thoroughly, and a lot sooner than they did. On the social side, a few dozen or maybe even a few hundred SLers have expressed a lot of concern over this issue, but the overall data tells a different story. Far as I can tell, it's caused nothing like the first CopyBot protest of 2006 or the Open Spaces freak out in 2008.

Hopefully it's obvious I'm not saying this as a way of diminishing any of Agenda's concerns (which are quite valid).

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Comments

[Metacam Oh]

so basically Linden Lab is a entity that won't do the right thing unless it hurts their bottom line.

[Ciaran Laval]

Vaki is spot on, very little has changed. I'm very disappointed about this.

[FlipperPA]

Slightly OT:

I've just got to ask, Hamlet, do you verify people who claim to be attorneys their RL identities offline and compare against the ABA?

I appreciate your coverage of this, and don't want it to stop, don't get me wrong... and I understand why anonymity is SL is vital. However, as a reporter you should be able to treat an avatar with no RL credentials as an anonymous source. While this RL lawyer brings an excellent analysis, a well known SL-attorney (who pretty much every knows, since he's spoken in RL at SLCCs) says occasionally the quotes from "RL attorneys" we see here are copy / pasted nonsense from wannabe Internet attorneys.

Just curious, not trying to stir up any drama.

Don't forget, on the Internets, everyone thinks they're an attorney!

[Nathan Adored]

Well, just because sales and creation of certain things haven't taken a dent, doesn't mean this won't harm LL in other ways, particularly a short distance down the road. For one thing, since with SL2 the merchants might still likely have to re-import a lot of their creations (particularly since the avatars will undoubtedly be a different standard, requiring all products related to that to be done from scratch, but other things will probably be done different, too), we might see a mass number of people who simply don't *trust* LL's judgement anymore and who, since they have to bring everything in from scratch ANYway.... might in large numbers just migrate exclusively to Rosedale's High Fidelity instead, while flipping the finger at LL. oO

Frankly, the more frakked up stuff LL does, the more attractive HiFi looks, and the more I look forward to HiFi coming out of alpha and then out of beta.

[A.J.]

I agree with Metacam, money is not a good judge of right or wrong. People get away with stealing every day.

LL's TOS revision is worse than the 1st because the decision was made after a very legitimate argument was made against it. LL will not explain themselves in the face of all kinds of devious speculation, so one can only conclude that the mysterious truth is as bad or worse than the rumors.

Anyone who has ever been in a cheating relationship can recognize what's going on. The truth just isn't that hard to find unless one party goes to extreme lengths to hide it.

Just because LL may not be losing money, it doesn't mean they haven't lost anything. Time will tell exactly how much they've lost.

[Ayesha Lytton]

The new TOS is barely if at all better than the previous one, and I think if anything it will have more effect this time, because people can see now that they really, really don't want to change it for some reason. With the last TOS, I pretty much fell into the camp of believing that it was unintentionally poor wording with no harmful intent. But since then they've been made well aware of the issues, and had months to fix it, but didn't. That suggests that they have a reason for wanting it the way that it is. My guess is that they want the ability to sell SL to another company, or to transfer content to SL2 without getting permission. I don't think they actually want to sell people's stuff for their own profit, but based on what they're doing with the games regulations, it's possible that they may want to start taking a cut of all in world sales or imposing some other kind of tax.

Speaking of which, all of this talk about the new TOS is drowning out discussion about the less known but probably more significant upcoming change - the new skill gaming regulations. For the first time, Linden Lab is charging more for regions based on the type of content they host - a disturbing turn of events that may spread to other types of content. That is far from the biggest problem, however. They are forcing games operators and creators to agree to pay a quarterly fee, without stating how much that fee will be. Is that even legal?

The biggest expense is that they are requiring both game creators and operators to get what they call a "legal reasoned opinion" from a licensed attorney. This costs thousands of dollars that most creators and operators don't have. Many major game creators and large game halls will be forced out of business because they can't afford to hire an attorney. Their income will be ripped from them with less than 30 days notice.

Virtually all clubs and small businesses who hosted a few game machines to help cover the tier will lose that source of income. Other games like fishing for L$ will also be affected, meaning there's one less opportunity for newbies to get starting cash to shop and become immersed in the platform. Many attractions that were funded by revenue from games will close. I fully expect to see hundreds of regions go off-line within the next month. The effects will ripple to content creators, as people who operated games and who won money playing games will no longer have that income to spend in world.

I was not in Second Life when gambling was banned, but I heard that it had a devastating effect on the economy. That effect was comparatively short-lived, however, as skill games appeared and players and operators had a new option. There's no way that can happen this time because the regulations are so strict. I understand that they had to make some changes for legal reasons, but they made it more complicated and expensive than it needs to be. Their attempt at a money grab is going to come back and bite them in the butt.

Many of us are dissatisfied about the TOS, region prices, games changes, etc. but it's very hard to walk away when you have so much time and money invested. You want to stick around and hope that things get better. I have been a loyal customer for years, and it's brought me nothing but trouble. Every time I get a business venture to be profitable, Linden Lab makes an arbitrary or draconian change that ruins everything. They don't care if we make money, as long as they do. They know we are loyal, and they use it to extract as much from us as they can, treating us badly no matter how many thousands we spend every month.

Many people have had enough and walked away. Many regions have closed in the last year and many smaller land businesses have pulled up stakes. They know people are leaving, but their response is to try to get more from those who are still here, instead of fixing the problems or lowering prices to bring people back. So the exodus will continue, and I'm likely to be heading out myself. But walking away, for me, means I will still have some regions as I have full sim tenants, including a major arts community and a charity who depend on my land. Linden Lab may have abandoned me, but I won't abandon my responsibilities. So they'll be making money off of me for a while yet, but they won't have my loyalty and my heart. I'll be looking for a new platform where my skills and talents are valued, where creators' rights are protected, and where being a loyal customer means you get discounts, or at least treated with respect.

[Bob]

Another weird tone from Hamlett, who the hell cares if the SL economy hasn't dropped one iota, the TOS is wrong and this blog should lead by example and take a stronger stand on it,

[cathartes aura]

IMO LL, the top builder/content creators and land barons are/have been conspiring to drive out their smaller competitors. They would rather have a smaller, non-mass adopted world where they reap 90%+ of inworld income, instead of a smaller percentage of a much larger economic pie. They are that greedy... Atlas Land Program, grandfathered tier, reduced tier, free tier to their "friends" have led to the current position LL/SL finds itself in.

Instead of eliminating all that destructive BS, LL, the top content creators, and the land barons appear to be doubling down on it. Hence the concerns over SL 2.0. Which according to ole Ebs is just like SL 1.0 "but better".

What will be "better" about it? Land costs even more highly rigged to benefit certain folks at others expense? An "approved" content creator program where only "friends" of LL are allowed to create? The above mentioned scenarios wouldn't surprise me a bit given the past actions/performance of "the Lab".

[Nathan Adored]

Well, the way I hear it, SL2 the land pricing is going to be VERY different from how SL1 works, as in the price will be about like regular website-hosting prices, with LL making all their money from taking a slice out of product-sales...

But I've also heard it said that SL2 will be designed such that NO sales at ALL of content will be possible in-world, that product distribution will ONLY be allowed through an SL2 Marketplace sorta thing. oO Supposedly this is to help stop copybotters, since every product would HAVE to go through channels that LL could much more easily track. But... if THAT part is the case, the new system is gonna be a disaster.

[RULosingHair]

Upcoming Presentations Schedule
August 2, 2014 - Linden Lab ToS Update 2.3/Gaming Policy Change

SL Bar Association
http://slbarassn.ning.com/

[Arcadia Codesmith]

Metacam Oh said "so basically Linden Lab is a entity that won't do the right thing unless it hurts their bottom line."

Yes.

Welcome to capitalism.

Any time a business does anything beneficial, it's either entirely coincidental to enhancing the bottom line or it is an indirect attempt to enhance the bottom line via burnishing the corporate brand. Examples of business exhibiting ethical behavior without either the expectation of reward or threat of punishment are exceedingly rare.

Linden Lab is an enterprise whose purpose is to separate us from as much of our money as they can as efficiently as they can. The company as an entity is not our friend (though individual employees can and do have the same range of human motivations as anybody else.

Approaching any business with moral or ethical standards of right and wrong is fruitless. You might as well be speaking Martian. You're dealing with an often diabolically clever organism who nonetheless has the moral compass of a flatworm -- it understands Skinnerian conditioning and little else. If you want to train it, bring food pellets and a big-ass cattle prod.

[Pussycat Catnap]

"Since this controversy began, there not been a noticeable drop in the amount of Second Life content created, bought, and sold, let alone any dip in actual usage of Second Life."
**************
People spoke up, blogged about it, got third parties to pull support (places like Renderosity), they called LLs out on it all over the internet.

The SL userbase even managed to get LLs CEO fired.

But Hamlet thinks nothing happened and no one cared...

Because people didn't burn down THEIR OWN communities in protest.

The thing is... its BECAUSE WE CARE that the one thing people did NOT do is leave and destroy their communities...

If no one cared... then yeah - that is when you'll see all the users vanish and Marketplace drop off.

But before that, you'll just see us rant and rave to the point that the SL brand gets even more toxic than it is... which itself may not be wise... but its the sort of protest people WILL do because it can seem to be done without hurting the existing communities...

LLs is however, wise enough to see that keeping the users happy helps the brand - and that the 'bottom line' is not just the dollars.

They fumble in reaching that, and get it wrong more often than right... but they at least understand it actually does matter in a way that Hamlet apparently is completely lost about.

Fired CEO, and now new ToS. I'd say - rightly or wrongly - they are at least trying. They're aware of the problem.

GI May have said "Knowing is half the battle." LLs just has to learn how to handle the other half... O.o

[Pussycat Catnap]

ps: I think the whole point of bringing in E. Linden was to get a CEO who had the skills to be able to understand and relate to the users.

He's not made changes as fast as we might like - but I think its clear that he's better intentioned than in past, and is obviously putting in the effort.

To me, that speaks volumes of how LLs got hyper aware after the ToS changed last year that they were doing something wrong, and needed to figure out what. So they go themselves a guy who could deal with that...

And he's exposed to that among a number of lindens... they too had been getting frustrated with the prior direction, and wanted to reach out again.

So... I think the way the community acted after that last ToS change last year was exactly right.

Rather than abandon SL and our communities in it - we called them out on the change, and got very vocal. But we stayed engaged to show we cared.

And now, though its not everything we wanted... we've got a much better CEO, and an improving ToS.

[Hamlet Au]

"I've just got to ask, Hamlet, do you verify people who claim to be attorneys their RL identities offline and compare against the ABA?"

In this case, yes, I did.

[Vaki]

Just to follow up on that last question:

"I've just got to ask, Hamlet, do you verify people who claim to be attorneys their RL identities offline and compare against the ABA?"

The SL Bar Association has a verification service for in-world attorneys (not just our members, but any attorney operating in-world). It will confirm an attorney's RL bar certification, allowing an attorney to operate in-world without using his or her real name — if that's what he or she desires — while still being able to assert to in-world clients that he or she is actually bar-certified.

It's a handy tool.

(Caveat: I think SLBA is still doing the verification service. I haven't checked in a while. I should double check.)

Regardless, Hamlet's had my RL contact info for ages. I'm an internet lawyer, but not a lawyer-in-internet-only. Plus...I'm a little too visible and outspoken around here to be that full of shit. I'd've been busted a long time ago. You guys are nosy.

(Also, side note again: you don't compare against the ABA. The ABA doesn't certify attorneys. You compare against the attorney's local state bar. TMYK.)

Anyway, as I said earlier: I think the real problem with the ToS is that it's evidence of a massive communication disconnect between Linden Lab's corporate leadership and its legal department. If its leadership doesn't want the ToS to be an overbroad rights grab, but its legal department isn't able to phrase the ToS in such a way that it isn't an overbroad rights grab, that seems to be a big problem to me.

We'll be doing another ToS presentation at Justitia on August 2, if you want to come chat about it. Thanks for the plug, RULosingHair.

[RULosingHair]

Event Information

SL Bar Assoc Event - LL ToS Update 2.3 http://ht.ly/zzkjg