Linden Lab whiffs the ToS again

Today, Linden Lab announced with great glee that, just short of a year after its extremely controversial and overbroad August 2013 Terms of Service update, it has finally “clarified” the offending clause, as a sign of how seriously it “respects the proprietary rights of Second Life’s content creators.”

So let’s look at how deep that respect goes — let’s look at this change that took a year for Linden Lab to effect.

What changed?

They moved “sell, re-sell, or sublicense (through multiple levels)” from the beginning of the list to the end of the list. And then they added a totally unclear parenthetical: “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)”.

That is all.

That is what’s prompting their big pat-themselves-on-the-back post up there.

So…there are a couple of really problematic things here, and I’m still trying to be clear about what this very small change does.

Reordering the list

You still grant Linden Lab the following rights, and they are still perpetual and irrevocable:

It doesn’t matter what order they’re in. It’s still the same bundle of rights you’re granting Linden Lab.

Unless…..

The limiting parenthetical

I have an English degree. I’m a grammar nerd.  It comes in handy when writing things that have to be clear. One of the things you don’t do when seeking clarity in writing is string together a big long list and then tack on a phrase that could apply to one item on the list or all items on the list.

And here’s the problem: the “(through multiple levels)” parenthetical only applies to “sublicense.” It means that LL can extend these rights to third parties through many different levels of licensing agreements (in other words, LL may have an agreement with a hosting provider, and it may have an agreement with a peering provider, and LL may need to pass some permissions through to all of them).

By changing the order of “sell, re-sell, and sublicense (through multiple levels)” and then putting the limiting parenthetical after those words, Linden Lab has done a great job of making it look like that parenthetical only applies to “sublicense,” or at best to “sell, re-sell, and sublicense.”

In other words, it looks like the Terms of Service is exactly as bad as it always was, but Linden Lab can only sublicense your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.” At best, it can only sell or resell your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.”

The latter seems to be the interpretation Linden Lab is insinuating in its blog post, but there’s nothing in the phrasing here that indicates that this limitation actually applies to “sell” or “re-sell,” much less to all of the other permissions that come before them. It seems to me that if the limitation does apply to “sell” or “re-sell,” it should also apply to all of the permissions…but it isn’t written that way, and Linden Lab’s blog post doesn’t sound as if they’re interpreting it that way.

It sounds like it can still do all that other stuff, without limitation.

What about derivative works?

One of the biggest questions that came up about the Terms of Service change last year was the part right after this new alteration, the part that reads: “…or exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof)….”

This has not changed.

This limitation, whatever it means, does not affect derivative works of your User Content.

(Side note: I still don’t think Linden Lab actually has a valid claim to non-SL derivative works of most user content, regardless of what its atrociously-written ToS says, but I’m certain no one wants to go to court to test my theory).

The short version

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). I had an ambivalent opinion of whoever Linden Lab had hired to write their Terms of Service before. After today, it has not improved. It took LL a year to come up with this much. I don’t have high hopes on getting a revision any time soon.

Good luck.

 

Give them me. No.

When I was a little kid, I had a book of poetry that I loved. My favorite poem — the one that haunted me, obsessed me, stayed with me — was “Overheard on a Saltmarsh,” a brief dialogue between a nymph and a goblin. I’m going to share the poem, but the poem itself was nothing without the art that accompanied it, so here is the page from my childhood:

I loved this. I loved the goblin, attenuated and avaricious, slavering despite his sharp claws and teeth and bulging eyes and quills, pleading for and demanding the beads he craves, willing to howl all night in a lagoon for his desire. I loved the nymph, aloof and haughty, gown flowing elegantly into water, eternally encompassing and withholding. I loved that despite her grandeur and reserve, she demands silence about her own crime: Hush, she says: I stole them out of the moon. Thief.

For years, I have wanted to make my own rendition of this image. I’ve worked on it for ages, and I want to thank two people for the two most crucial elements of the picture. First, Polyester Partridge of Yummy!, who generously created my green glass beads and a silver ring, so I didn’t have to steal mine out of the moon. They are lovely. Second, Olaenka Chesnokov of oOo Studio, who custom-made both of the poses after I threw my hands up in despair at ever finding poses that would work. She made them perfectly and they gave me exactly what I needed. Thank you both, you’re awesome. You made my image come to life.

Other than those two, I’m not giving credits to what I’m wearing, because everything is so heavily photoshopped it isn’t an accurate representation of what anything looks like in-world. But I’m very, very happy I got to do it.

Meshwork and textures

Sometimes you see a store’s stuff a million times and it never really clicks until you go there, immerse yourself in it, try everything on and get down in the look of it. I always see tulip at events, you know, and I always thought it was nice and I meant to go, but it’s been a while since I had time.

I should have made time. Minami Susanowa’s work is delicate and lovely, and I always assumed it just wouldn’t work for me, but it really does. Many mesh creators right now fall back on the strength of their mesh work and forget how important texturing is to the virtual illusion, but at tulip the textures really shine: this halterneck drape shirt has a subtle, silken sheen to it, and it’s all the texture and shading, not a trick of materials. The shoes show details like the stacked wood of the low heel and the the nap of the brushed suede, even in black (and oh, god, so many texturers lose all their detailing skills once they need to work in black or white!). Sweaters appear lush and soft; tank tops look comfortable and well-worn.

It’s all about the textures, creators. It was all about the textures back when all we had was system layers, and that hasn’t changed just because the technology has evolved from prim to sculptie to mesh. Show some love for the beautiful textures: it’s what keeps our little world real.

Wearing:
Skin: Glam Affair, as always
Hair: CheerNo — Salvio by Cheerno Destiny
Shirt: tulip — Halterneck by Minami Susanowa
Trousers: Maitreya — Leather skinny pants by Onyx LeShelle
Shoes: tulip — Suede loafer by Minami Susanowa
Tattoo: Aitui — The Bombing of Pearl Harbor by Jesseaitui Petion
Hairbase: Aitui — Etched Hairbase by Jesseaitui Petion (at TMD)
Glasses: SORGO — BELL shades by Arscene Dubrovna (at Chapter Four)
Nails: A:S:S — Deco by Photos Nikolaidis
Pose: marukin by Valencia Southard

Justitia Virtual Legal Resource Village celebrates Law Day!

Teleport to Justitia!

The SL Bar Association and Justitia Virtual Legal Resource Village are once again putting on a month-long celebration of law in Second Life. This is their fourth year of celebrating Law Day in SL, and this year’s festival promises to be the best yet.

As most of you know, I’m a member (and former board member) of the SLBA, and I organized this event…and I couldn’t be more pleased with how it turned out this year.

The events start today with a vendor market that will run all month. Six extremely generous vendors — Yummy!, oOo Studio, !bang, Theosophy, A:S:S, and ISON — have given their time, their talents, and their wares to create unique items in the law and justice theme, and are offering them at 100% donation to the SLBA so it can keep offering educational programming in-world on legal issues that affect SL residents.

Seriously, you should see the things people put out! I don’t care if I’m supposed to be impartial: Polyester Partridge went above and beyond with her awesome justice scale earrings. Never taking them off ever.

Additionally, there are info boards spread out over the village displaying information about a few of our past presentations. Stroll through Justitia and learn about the basics of copyright, fair use myths, how to interpret the SL terms of service, and many other legal issues.

Events get into high gear at 10 am SLT on May 3, when the festival really kicks off. We’ll have a presentation by Faye Blackheart on the current state of voting rights in the United States, a highly charged and controversial issue that’s (coincidentally) back in the spotlight this week after a federal court just struck down Wisconsin’s voter ID law as unconstitutional on Tuesday. She’ll discuss the constitutional origins of the right to vote, its evolution over the years through the Civil Rights Act and Voting Rights Act, and its recent setback in Shelby County v. Holder. Our right to vote is a cornerstone of democracy: come understand what’s so important about it, and how the recent changes affect you.

Afterward, because we’re not always so serious, there’ll be dancing and fun. It’s a festival, after all!

The Law Day Festival is at Justitia.

Copyright and Fair Use for SL Content Creators

We did this last year and it was really successful, so Tim and I are doing it again this year. Are you interested in learning more about what we mean when we talk about “fair use”? Would you like to hear some actual lawyers talk about what it really means, what the current state of the law is, and how it applies to content creation and use in SL?

Of course you would.

Come to the Justitia Legal Resource Village at 10 am on Saturday morning SLT and be prepared to talk copyright and fair use with me and Tim Faith. Have questions? Bring ’em!

Somebody watching me

They’re watching us. Anyone with any sense has known that for years, but last month we got evidence: THEY are watching us, peering in on Second Life, spying on our porn and our petty jealousies and our mad fashion exploits. They’re creeping down our virtual alleyways, peering in our windows, trading files full of our fantasies.

But I can promise you they don’t look as good as I do while they’re doing it.

Wearing:
Skin: Glam Affair — Vaki by Aida Ewing
Hair: CheerNo — Enzo by CheerNo Destiny (TDR Fusion)
Shirt & Tie: Tres Blah — Long Sleeve Collared Blouse by Juliette Westerberg (C88)
Trousers: Baiastice — Emy high-waist trousers by Baiastice
Shoes: Ju — 91 Boots by Ju Weisnicht
Briefcase: oyasumi — briefcase by Kenzo Gateaux (TMD)
Hands: Slink by Siddean Munro
Poses: Morphine by Pedrinho Naire; Del May by Del May

Trademark Law Basics

(Obnoxious but necessary caveats: I’m simplifying this a lot, which means I’m leaving a lot out…and it’s still insanely long. If you’re a trademark lawyer, sorry: I know I’ve left out some important bits. Also: this is intended to be a general overview, not legal advice.)

Let’s sit down a moment and try to get a grasp on why trademark law works the way it works. So many of us are familiar with good old copyright law, which seems so easy and straightforward (protip: it isn’t, but it’s good at pretending). On first approach, we expect trademark law to be the same: basically just copyright law with a business suit on.

It isn’t. Trademark law has a completely different goal and intent. Let me lay out the basics in a handy comparison chart, and then I’ll get to the hard stuff.

Readers Digest Version: Trademark law isn’t like copyright law. Copyright law protects the creator / owner. Trademark law protects the consumer / buyer. When trying to decide if something infringes or not, copyright asks, “Oh, is it similar to John Doe’s work?”. Trademark asks, “Would consumers think that this product comes from that source?”.

Okay, so that’s the easy part. Now we have to look at the really difficult part – the stuff that always throws people about trademarks.

When you create a work of authorship, like a painting, that work is covered. Full stop. It doesn’t matter what state you live in. It doesn’t matter whether you’re using that painting for your awesome lolcat website or for your grandmother’s birthday present. It’s covered.

When you create a brand name, a logo, a symbol, or any other mark, it matters how and where you choose to use that mark. If I create the “WhoaToes” brand of fuzzy socks and I am the first person to sell fuzzy socks under the name “WhoaToes,” I will immediately have a trademark for “WhoaToes” in my geographical area. I can register “WhoaToes” with the Trademark Office, and then I will have the right to use the mark nationwide. So that’s the where part.

The how part is more confusing. When I register my trademark, I have to indicate what kind of goods I intend to protect. I’m selling fuzzy socks. This means that when I register my trademark, I can register “WhoaToes” in clothing, and I can keep people from using that mark for clothing. So I could stop someone from making some awesome “WhoaToes” sweaters. However, if I’ve only claimed my mark in the clothing class of goods, I can’t stop someone from making “WhoaToes” potatoes or “WhoaToes” toys. I also can’t prevent non-commercial uses…

…Except (you had to know there would be an except). I can prevent certain uses that harm the distinctiveness or the reputation of my brand. If my brand is famous, I get some extra protections on it: once practically everybody knows what WhoaToes is, I can stop people from making products in different classes. Basically, I can stop other people from cashing in on my famous mark, because if I don’t, then consumers won’t be able to tell what goods are really endorsed by WhoaToes and what goods are just some random person trying to ride my fuzzy WhoaToes coattails. After a while, consumers might just stop trusting the WhoaToes name, and that would be bad.

Things get super, super-confusing when you add a virtual world into the mix. In SL, when people purchase fuzzy socks, they are not actually clothing. No one would reasonably be confused that virtual fuzzy socks are actually going to warm your feet. However, many real life companies have come into SL and established presences there, creating and selling branded items. So if someone sold WhoaToes fuzzy socks in SL without my permission, would that infringe my trademark? The law is still unsettled, and pretty confusing. There have been cases of real-world companies suing video game creators for trademark infringement: a strip club sued Rockstar Games for reproducing its club and logo in Grand Theft Auto: San Andreas; Marvel sued City of Heroes for allowing players to reproduce trademarked comic book heroes; and even TASER sued Second Life for permitting the sale of trademarked TASER guns. There is also licensing: back in 2008, to stop infringement, Herman Miller hired a production company to create authorized Aeron chairs in Second Life, which it both sold and offered as trade to people who destroyed their infringing knock-offs. But ultimately, it remains unsettled as to whether or not the knock-offs were actually infringing as a matter of law.

Is it a risk worth taking? As risks go, this one isn’t my favorite. There are certainly better approaches to business than trading in on someone else’s famous brand. You’re in violation of the Terms of Service, which means you’re on shaky ground with LL. And if you want to fight for the cause of virtual exceptionalism just for the sake of the precedent, more power to you…but it’s going to be an expensive fight. Also, trust me, nobody wants virtual WhoaToes knockoffs.

(The chart above is public domain, to the extent of applicable law. Have at. I’d love a link back if you feel like it, but I don’t require it.)

Second Life Terms of Service: A legal panel

MORE EDITS: Video is up! And we have a pdf of my slides: SL ToS Presentation. Enjoy! Also, Inara Pey worked her ass off to create some excellent transcripts of the event, and the UCCSL is working on translating those into a few languages when possible.

Please join me (as my alt, Agenda Faromet), Tim Faith, and VIPO’s Juris Amat — all of us IP attorneys in real life — as we discuss the latest changes to Second Life’s Terms of Service. We’ll take a close, detailed look at exactly what the controversial section of the new ToS means, how it affects content creators (and regular users), what changed from the old terms, and why people are so upset. More importantly, we’ll answer your questions and discuss how the Terms of Service affects your rights now and in the future.

This event will be Saturday, October 19 at 10 am SLT at the UCCSL’s Rose Theatre Opera House. This is a new location that can support more avatars. We changed locations due to the high demand for this event. A few people have offered to record the event for us (but if you’re willing / able to record, please do!), and we hope we will also be able to reprise the panel on a second date if the demand is high enough.

Note: if we do get a good recording, we would really like to get a transcript for the hearing impaired. If you are willing to transcribe a recording for us, please contact Agenda Faromet after the panel is over. Thank you!

Electric ladies will you sleep…or will you preach?

Today is the 50th anniversary of Dr. King’s famous March on Washington. Today, 50 years after Dr. King spoke on the steps of the Lincoln Memorial, Barack Obama spoke on the steps of the Lincoln Memorial. That’s pretty cool.

We have not fulfilled the dream of Dr. King, but we’re a lot closer than we were in those days. But we still have work to do. Today we remember the great work that Dr. King did to put us on this path, and we respect that work by trying very hard to stay on that path: we have to restore the voting rights struck down this summer; we’re taking steps toward remedying the inequalities in incarceration in this country; we need to work on inequalities in unemployment rates and violence. We have work to do. We need to remember, today, that King’s speech was not just about his dream. It was about the problems that needed to be remedied. We remember, today, that 50 years ago he warned us: “We cannot be satisfied as long as a Negro in Mississippi cannot vote, and a Negro in New York believes he has nothing for which to vote.” We are not satisfied. The dream is not done. We have work to do.

But I also want to say that today we don’t just remember Dr. King’s great march and speech. Today we also need to remember the reason that the march was held on August 28 in the first place: we need to remember Emmett Till. Emmett Till was a 14-year-old child who committed the horrific crime of speaking to a white woman in Mississippi in 1955…because, of course, a black male speaking to a white woman must have nefarious motives. For that transgression, he was pulled out of his home in the middle of the night, tortured, and murdered by two white men who were acquitted of the killing.

Today is 50 years after Dr. King’s speech, but it’s nearly 60 years after Emmett Till was lynched, and last year we’ve just seen another child killed for no reason at all, because his killer assumed that a black male out after dark must have nefarious motives. Again, this summer the killer was acquitted of murder. We’ve grown as a culture, but as individuals, we’re still making the same racist assumptions, and as a legal system, we still have flaws. Today is a celebration, but it is also an admonition. Because we have work to do.

August 28, 2013

Grown Up

I learned the coolest new trick today.

We keep hearing about materials in mesh, and awesome new mesh clothes and furniture and other items being “materials ready.” Well, that’s awesome. But guess what. Materials can go on regular prims, too. Which means that if, like me, you’re not a mesh creator, but you do like to create other things in-world, you can still create materials-ready stuff. And they can look like that background above. Check it out.

BIG CAVEAT: you have to have advanced lighting and shadows enabled for all the following to work.

Build a prim. You know how to do this already. Now, edit it, and open up the Texture tab. You’ll see that it looks pretty different from the way it has looked for years and years. Notably, you’ll see a “Materials” option (it’s already set) and next to it, it says “Texture (diffuse).” Change that to “Shininess.”

Nothing happens, but you see off to the side there’s a texture box. You can either drop a texture in that or set it to blank (I can’t see a difference between the two options) (Edit: see below!). For now, set it to blank and start playing with the options it gives you.

You’ll see I added a color here, but nothing happens. That gets interesting later. I promise. Now, go back up and change “Shininess” to “Bumpiness.” This is the same old stock LL bumpiness map, with one interesting change:

…you can add a texture. Adding a texture here does really cool things, as you can see. Play around with it, add textures. Have fun. Afterwards, add the same texture to the normal texture input, and you’re done.

Almost.

Remember when I added that color to the Shininess menu, and nothing happened? Check out what happens when I shine a light prim on it:

Yeah. This is so cool.

Have fun, guys!

Edit: There is a difference between dropping a texture into the texture box on the “Shininess” tab and setting it to blank. The texture is what is reflected when a light (either the sun or a spotlight prim) shines onto your new object. Now, when I say “reflected,” it’s not properly reflected as in cast the way a mirror would, but it’s still pretty cool. I can’t give you a real feel for how it looks in a static picture, but here: this prim has no texture on it except under the Shininess tab.

Neat, huh? Now. Go play with it. Do it.