Clickable Culture   Official Research Blog of Phantom Compass
  Another Look at ‘Second Life’ Copyright Issues  
Posted 2006-09-11 by Tony Walsh
John Swords, ringleader of the Secondcast podcast pertaining to the virtual world of Second Life, has posted an interesting analysis of some seemingly new portions of SL's Terms of Service (TOS). Second Life is a world that is filled with and formed by user-created content; Linden Lab, maker of Second Life, relinquished its proprietary interest in the creations of its users some time ago. The way Swords slices it, though, ownership of user-created content is still quite murky: "[W]hat rights do content creators retain? Don’t expect Linden Lab to say. Aside from the fact U.S. copyright and intellectual property rights are outside of their jurisdiction, Linden Lab takes measures to distance themselves from helping to figure it out within their TOS."

Swords might not be a lawyer, but he raises some points worthy of clarification by Linden Lab. Swords supposes that "The TOS grants all users royalty-free rights to everyone else's content," which, if true, would be a disaster for virtual world business-owners, many of whom rely upon customers paying for specific rights. Swords notes, as I did earlier this year, that while Linden Lab doesn't claim to own user-created content, it does assert ownership of one's account and "related data"--essentially one's means of existing in the virtual world and one's inventory of virtual posessions.

A recent, public controversy over IP rights of Second Life users involved accusations of theft, notions of Fair Use and derivative work. James Au of New World Notes writes about the incident "it's often been assumed that social pressure was the first line of defense in protecting Residents' creations. Go around blatantly copying and reselling the avatar fashion designs of others, this line of reasoning went, and word would get around the Second Life community, and after enough approbation, the culprit would soon find themself out of business. This still seems to be true, in most cases, but it doesn't cover controversies like these, where definitions of 'theft' and 'fair use' are in serious dispute, and some of the parties involved are among the most well-reputed content creators."

John Swords concludes that "For now, we all have to wait for a content creator to file suit and a judge to reach a verdict. And even then, there’s always future cases and appeals to form the rest of the story." Seems to me that there'd be fewer problems (and fewer future lawsuits) if Linden Lab's Terms of Service for Second Life more clearly presented the facts and IP issues to users.

Earlier posts here at Clickable Culture on intellectual property and Second Life include:
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Comment posted by Prokofy Neva
September 12, 2006 @ 12:45 pm
I think all this language boils down to is this: "You can make content with our software, charge whatever you can get for it, and cash out the play money for real money without us stopping you." That's all. However, they make no guarantees that the money or the content have any intrinsic value, such that you could sue them over some kind of damages. They manipulate the exchange rate of the LindEx linden-dollar exchange even by printing money and putting their own free money on the exchange to sell it, something that a number of businessmen have been rather disgruntled about lately, because it feels as if they are being soaked coming and going -- on payment of tier, and then payment for being able to make any money beyond tier.

I think that while they were/are designing the software and growing the platform and the user base, they want to encourage people to come in and work for free, for long hours, for donated time, and have the sweetener of feeling that they get the costs of their game/creativity sessions covered, even a very big game across sims, and that they may even turn a dollar for themselves, too. It's a kind of crowd-sourcing that I call "crowd-serfing" because it's exploitative but people sign up willingly -- they'd be online grinding somewhere anyway.

As it becomes more clear just what content is worth, and just what development is worth on things like large, multiple-purpose serious/RL business islands, the Lindens will naturally want to grab more. They want to reserve that right. After all, they didn't make any money off this thing yet, it is barely at a break-even stage still, no? And that's why the Lindens have been really obdurate about keeping to their FIC approach -- they want to reserve the right to pick over all the user-made content, GOM (co-opt) whatever of it they need for their platform, and create special relationships certain content creators by giving them access to pitch to RL businesses and get RL media coverage. They feel this is a normal practice, they have an aggressively obedient cadres of such people with those privileged relationships who zealously defend the practice, and they see it as the model for the future -- the Medicis pick their Michaelangelos, and do not attempt to make any kind of level playing field or open and democratic setting because they don't at heart believe that top programming and design come from such openness; they believe it only comes from careful culling and vetting and nurturing of those that "get it" and "work out".

So they will probably come up with some sort of licensing scheme. High-end content and land development players will be able to buy in, but for a price. They already pay that price to some extent with tier, but it will become more steep, not less and be more like a usage fee. Ultimately, this could be in the form of an actual licensing to use and even modify the software and create the world structure, too, but in the short-term it will be emulation of this through the ability to create skins for the user panel, etc.

I'd be happier if they weren't doing this, because I think it's a recipe for creating a magnificent, but rather brittle and brutal world that will eventually be overthrown by the discontented.

I wish that the metaverse would treat goods and services like the real world. I feel that they aren't merely items of "art" as the more controlling and conservative content creators like Chip Midnight wish to depict them. The recent drama over Torrid Midnight ripping open a skin reportedly for personal use, and the totally unseemly attack launched by Stroker Serpentine on a woman he mistakenly portrayed as "stealing" his bed because she re-sold it at a yardsale, are all examples of the pioneer stages of this law environment currently utterly shaped by professional creators, and not consumers or casual content makers. I wish it were drawing more heavily on Bobbs-Merrill, first-sale doctrine, and a robust sort of E-bay culture of consumers' rights to buy and resell, and not be drawing on the clutchy, coveting culture of software programmers who don't want people to copy their programs, movies, or songs for free. But it's not, and that has to be recognized.

A bed in SL is not a song or a movie to the people using it, though a perfectly reasonable case can be made for calling it a movie as it takes place through the use of a streaming 3-d world client and is created by manipulating that software and other products like PSP. Yet the people in that world feel and act as if that bed is a discrete good -- they can lie on it, work it's pose balls, put it in inventory, move it into their homes, etc. so they feel that once they've paid for it, or even if it was a giveaway for free as a loss-leader, they should have the right to resell it -- not copy it endlessly, but open it up if it is moddable, mod it, resell it, or resell it as is. Even that simple act and perception of the good as not software is put up to heated contention by the conservative and smug burghers of Second Life who were the earliest creators. I do hope a significant consumer rights movement could gain steam in SL to enable the people who use/manipulate/store the goods to assert some property rights.

Heavy reliance on freebies as loss leaders in a climate which actively discourages advertising has also helped make this topic hugely controversial and emotional, as there are two camps constantly debating the legality and morality of selling freebies. The Lindens have remained agnostic and resisted attempts to drag them on to either side. That's because ultimately they feel they own everything anyway.

People who speak zealously about the legal principles they think should apply are basically still talking through their hats. There is no law because there is no case, no court decision, no ruling. We're all waiting for that. Bad cases make bad law. There's lots of bad cases in Second Life waiting to be made bad laws, and lobbying groups like the Sellers Guild willing to do the social pressure campaigns and Linden co-optation to get their way, which is to have uninhibited rights to control their product.

It's a curious thing, that Lawrence Lessig inspired the Lindens themselves to release the usual game-god clutches over user-made content, but all that has done has spawned a next generation of secondary content-creators who are absolutely rabid about preventing even normal first-sale transfer or fair use of their products and who become unreasonably vindictive over what they view as copyright theft (given that they themselves have often taken textures, poses, animations, etc. off the Internet from other creators for free).

Ultimately, Hamlet nee Linden Au's invocation of the creators' admonition ("go around copying...and you will find yourself out of business") will fail, because the world is too big now with too many people in it to have brow-beating work as an approach. Many people innocently reselling at a yardsale may have no idea they are reselling an "illegally" made copy or doing something wrong, since they do the same thing on Ebay. They shouldn't be bullied by oldbies.

My guess is that the Lindens are going to remain deliberately vague and muddled about this for a long time to come, because it's in their interests. They have all they need to have in the TOS to get what they want, and to set the stage also for some kind of licensing fee where they might even promise certain high-end insiders more protection of their IP in exchange for the fee and partnership relationship.

The only thing that could change this is a good case. But for all the drama-mongering, and all the hand-wringing, there hasn't been anybody to really bother to make a trademark, and defend it with a RL lawyer and a RL court-case.
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