Splitting Hairs Over Trademarks

Pirates ahoy!Laurap Linden thankfully replied on the Official Second Life® Blog to our plea for clarification on some of the more subtle issues of Linden Lab®’s policy on the trademark usage.

In fact, the most important question was not exactly about the trademark usage; after all, the complete guidelines for their usage are spelt out on their Second Life Brand Center. Any lawyer should be able to read through all of those and say what is allowed and what is not. Similarly, graphical designers — such a large part of Second Life’s population — are by now used to similar guidelines for their other customers; as well as communication and marketing specialists. There is nothing new on the guidelines for anyone that is used to deal with them. For the rest of us, Linden Lab took pains to write a reasonably detailed FAQ, which should be enough for anyone wishing to use LL’s trademarks on their texts.

No, the two most important questions were about banning avatars from non-compliant users and “grandfathering” the existing use of the trademarks in the past four years thanks to a gentler policy.

Clarification did go a long way

Captain Jack Sparrow blows kiss to GwynLaurap Linden did go a long way to establish Linden Lab’s position regarding the use of their trademarks outside of Second Life — a service where, of course, the Terms of Service apply. Like Tateru Nino so well pointed out at Massively, what they said on the ToS, and what they publicly claimed were at odds. Laurap now makes it clear: yes, Linden Lab will ban you if ultimately you refuse to comply with their trademark usage guidelines.

10. Why is the trademark policy in the Terms of Service?

The Terms of Service are the conditions under which Linden Lab offers the Second Life services. One of those conditions is adherence to our trademark policy, meaning that any use of our trademarks–both inworld and outside of Second Life–must comply with our policy.

But they also introduced a new precedent:

For trademark issues, banning would be a last resort. We’d issue multiple warnings beforehand, and even afterwards, Residents would have an opportunity to request reversal of the ban by sending us a written appeal.

This is a new procedure for banning. As most of the people who have been banned know, there are certain cases where banning is automatic: griefing, minors on the Adult Grid, and so on. Other cases get fair warnings first, suspension next (for a day or three), then banning for a week or two, and finally a permaban.

Depending on how serious the offense (usually a violation of the Community Standards), LL might be prone to ban first and give you an opportunity to appeal later. It was interesting to understand where exactly Linden Lab was going to fit their “trademark banning”.

We know now that they won’t “ban first, ask questions later”. They’re still threatening to ban if there is no other possible choice. Make no mistake — on a tug-of-war, Linden Lab will always have the strongest hand — but at least they’re being a bit more reasonable about it. And the precedent is there.

Partial “grandfathering”

Another of the issues was about existing content and not future one. By “content” I mean the blogs, articles, forums, papers, machinimas, images, presentations, and all sort of promotional material, written and produced by the residents in their effort to push ahead Second Life as the ultimate virtual world. Again, Laurap was generous:

4. Some bloggers have expressed concern about having to go back and change references to “Second Life” in blog posts they wrote before the updated policy. Do they have to do this?

We’re not going to ask bloggers to go back through blog posts predating the policy to change how they’ve described Second Life.

This is naturally good news — four years of content created by thousands of users is not easily changed, and Google caches old content too. Although the comment from Laurap explicitly refers to “bloggers” I’m sure this will also apply to other things as well (namely, comments on Flickr, for example!). Most of these are timestamped, so it’s easy to figure out if they were written/created under the former guidelines.

Others are harder to track down: imagine a presentation about SL that was sent to a book publisher for review last June. The book comes out now. What will Linden Lab do about it? It might involve some complex negotiations and a lawyer to assure LL that the next edition of the book (assuming it gets a second edition) will probably correct the usage of LL’s trademarks. This is a bit more tricky — LL could very correctly assume that the book’s publishing date is the one that decides which policy to apply, and effectively prevent a non-compliant book to be launched.

Bye-bye domains…

Where Linden Lab is adamant is on the abolishment of all names (including domain names), products, services, etc. referring to Second Life and using any of LL’s trademarks, both the old ones (the eye-on-hand logo, Second Life®, Linden Lab®) and the newer ones (“SL”, “SL Grid”, and, who knows, if they’re able to register them, “Grid” and even “Second”!). These will have to go — no matter how “old” they are and how established the residents’ own claims on the names (notably, The Second Life Herald, which I believe even predates the “Fansite Toolkit” policies…).

In truth, these were always forbidden. Not even the “Fansite Toolkit” allowed them. The logo could only be used as part of pre-approved banners clearly advertising LL’s products and services, to link back to LL’s sites. This was actually quite clear. People still abused the usage of the trademarked names and Linden Lab hardly did anything to prevent them. So both sides were at fault here: on one side, residents have abused and misinterpreted the guidelines. On the other side, LL was reluctant to act upon it, except in extreme cases (companies misrepresenting themselves as affiliated with LL, when no such affiliation existed). LL was probably reluctant to spend money and labour on the thousands of cases where a transgression occured, but where the intent of the residents was just to promote LL’s trademarks.

Still, it’s understandable that LL’s lawyers are now not so happy about the “dilution” and “genericide” effects that occured because LL failed to prevent them to happen in the past four years. This stance is understandable, specially because, in truth, LL never “allowed” the misuse of their trademarks. They simply failed to act upon the transgressions, and are enforcing them a posteriori.

Things are not so bleak as they look. SL News Network or SL Ballet Troupe will very likely continue to exist and use those names (SL Education Blog, for instance, is an example of proper usage, in Laurap’s own words). They might even be able to use a domain name with “SL” somewhere in it. It might require some exercise in English grammar to understand what is a “generic noun” (which can be used in products, names, and services using “SL”) and a “proper noun” (which can’t).

It seems to leave out things like http://secondlife.reuters.com or http://www.massively.com/category/second-life. Both could be changed to http://sl.reuters.com or http://www.massively.com/category/SL. These will definitely be some of the most trickier cases to deal with; LL, however, has pledged to work with these cases to smoothly encourage the transition (often, paying for the new domain names out of their own pockets and allowing the redirection to exist for a while — at lest until the “grace period” is over — to keep those 24 million links on Google still operational).

In case of doubt, the best way is to ask first and save yourself some trouble later, by sending an email to [email protected].

So, no “grandfathering” of old domain names. You’ll have to change them, one by one.

Restricting freedom of speech?

Another confusion that has arisen with this issue was about the way Linden Lab “limits” how we refer to their trademarks, e.g. we have to say “the Second Life® world” or “Second Life® residents” when mentioning their trademarks, but can’t simply say: “I found something so cool in Second Life today!”.

I believe that this is actually a non-issue, just wrongly misrepresented by both sides. LL’s “legalese” is not always clear enough, and they tended to imply that we have to put the silly ® and ™ symbols everywhere — which, really, they never said, but it was what “everybody” (including some Lindens!) assumed.

More serious is the issue about freedom of speech, i.e. “disparaging” use. So if I have a blog with SL-related articles, which clearly show the “inSL” logo, comply to the trademark guidelines, do I have the right or not to say “Second Life sucked today; nothing worked; teleports failed”?

Well, the guidelines have also been clarified. If it’s clearly a parody, it’s fine. If the site is purposely distorting facts in order to get people to quit SL, sell their islands, and go away — thus incurring in LL’s financial loss — it’s not ok. But — this is exactly what happens with any journalist when writing an article. “Get your facts straight” is a fundamental issue for all serious journalists. Bloggers are not different. If you are misrepresenting the truth, you’re facing a libel or defamation suit. That never changed. What LL further adds to their policies is that you cannot use their trademarks when defaming LL and incurring them in financial loss as part of your words.

Now this is more than reasonable. If you wish to open up a site spreading lies, fact distortions, “opinions” that have no connection to facts, well, you’re welcome to do that. Just don’t use LL’s trademarks. Don’t use the inSL logo. Stick to your “opinions” but don’t drag LL’s name into the mud.

On the other hand — emitting considered opinions based on facts is something completely different. An article on a clearly-labeled Second Life fansite, where a comment is made on how poorly a resident was treated by LL’s customer service, and with proof of the fact (chat logs, transcripts, snapshots, etc.) is just the exercise of free speech. If LL is hurt by the facts, it’s their problem. Misrepresenting the facts to enhance your case — and pushing other residents to “believe” you and cancel their accounts — is out of the question.

This is a matter of common business sense. Any reasonable company will naturally be open to criticism, specially if it’s fundamented, and addressing LL to fix what’s wrong. We can see how open-minded LL is about the comments made on their own blog — almost all of which are, in fact, completely unreasonable, unfundamented, and have no relevance whatsoever to “facts”, but stem mostly from emotional reactions to issues that people can’t or won’t understand. LL still publishes the comments! So I believe that what LL is trying to achieve is to prevent the “Second Life Haters Group” with a huge community of participants with the only motivation of getting people to leave SL and go elsewhere. Speaking for myself, I can certainly understand that. Hopefully, however, they’ll apply their rule of “ask first, ban later”, since in many cases, commentaries might be based on what is perceived as a fact and what is reality. Let me give you an example: people complain that WindLight is terrible for their computers, because “all their friends have noticed a drop in performance, more crashes, terrible difficulties in logging in, etc.” Now all these people set up a site where they gather all residents with problems with WindLight®, and claim, very loudly, that “Second Life is a fraud, and Linden Lab is just after your money — nothing works as it should! Give up your accounts, make them suffer by dropping your land and go away.”

When in reality Linden Lab does constant monitoring and gathers metrics and statistics that can factually prove that the SL client using WindLight is actually much better than the non-WindLight one. The issue is that the only ones complaining are the ones with problems! People are much more prone to complain when things don’t work for them than to praise LL when they work much better. So this would be a misrepresentation of facts — because, in reality, WindLight is better and LL can prove that — which could lead to a financial loss to LL. They would be wise to ask the writers to stop publishing slander and stick to the facts: yes, WindLight has problems for some users, but the majority of users, on average, have better results, and LL can exhibit the statistics to prove that fact.

I agree that the dividing line is not clear, and LL has reserved the right to decide where this line actually is. I would, however, bet that they will only act if they can also prove that certain misrepresented facts are, indeed, causing severe financial loss to LL. And, like any other company, they’re fully entitled to defend themselves if they believe that slander, libel, defamation, or any other mispresentation of factual truth is hurting their business.

This doesn’t mean that people like myself can’t continue to complain, for instance, that LL’s communication should be better 🙂 (and yes, I can factually prove that their communication is not as good as it should, by providing, if pushed, a reasonable number of cases where RL media had no way to get information out of LL themselves — or, better, from Lewis PR, their agency — and had to rely upon bloggers to get their facts). LL might not like to read this, but, alas, that’s freedom of speech. A good company will strive to make better and get their customers happy, not sue them over “facts”.

Should we continue to insist?

Captain Jack Sparrow hugs GwynA few bloggers were clearly not happy about Laurap Linden’s statement. In fact, it seems to reaffirm what we dreaded: that LL would, indeed, enforce the ToS, as a last resort, if there was no other chance to get an unruly blogger to comply. They also made clear that section 4.4 of the ToS will not be removed or changed. It’s part of life (or rather, Second Life), and we’ll have to live with it.

It also dumps the whole “grandfathering” issue into the trash can. There will be no grandfathering of domains; existing blogs/websites/third party sites/web-based services will have no choice but to comply, whether they wish it or not. Domain names will have to change. The overall wording and layout of SL-related websites will have to adhere to the guidelines. While some content written in the past will not be held against bloggers, new content will need to adhere to the guidelines.

LL is effectively fighting aggressively against dilution and genericide, even if in some cases they’re gentler than it seems (namely, allowing a restricted inclusion of “SL” on your blog/organisation/in-world service, as long as you don’t register it as a trademark). They will accept few or no exceptions. It means that the fight, if it is taken further, will enter a legal battle — and not merely a PR battle.

So first I would like to personally thank (once more), the legion of bloggers that have supported the “push” for Linden Lab to publish a clarification. Unlike what so many claimed, it’s true that the RL media gets their news from bloggers and companies operating in SL — these are truly the ones pushing “Second Life” to the mainstream and raising awareness. It’s obvious that the media will publish “bad news” first — so it’s important to keep the message clear. The “strike” — no matter what the effect — was just a convenient way to raise the attention to the issue (“bloggers are not happy”). Linden Lab reacted to the clarification, and personally, I’d like to thank Laurap Linden (and probably a lot of other Lindens, too, including their legal advisors) for the time spent in publishing that article. Most of the issues were, indeed, addressed, made clear, reinforced, and doubts dispelled. LL also confirms with this “More on Trademarks” post their general “common sense” stance, as opposed to the stern and ruthless legalese on the Second Life Brand Center.

However, it’s clear that people are still not happy about the results. A good example is the definition of what Second Life actually is. I’m sure that LL’s legal advisers will say it’s a service of Linden Lab, provided over a product of Linden Lab (“The Second Life Grid”), and thus a trademarked brand used in a copyrighted software framework.

Some Lindens claim otherwise — specifically, one Linden that will remain anonymous, because she (very rightfully) protests that people tend to quote her out of context 🙂 But I might quote Philip “Linden” Rosedale in May 2004 on an interview to Wired — “I’m not building a game. I’m building a new country”. Lindens are fond of their (trademark) motto: “Your World. Your Imagination.”™ which still figures on their main site. They also concede that their software and hardware, without any content, and people to create that content, is basically worthless (or as worthless as any other of the million of software platforms allowing the building of virtual worlds which just have a handful of users).

They also recognise that “Second Life” defines more than a sum of the parts. It’s a platform, sure, since it’s embodied in software, hardware, and networking technology. It’s also content — Second Life is the virtual world we see and share together. It is, however, mostly people. And this is the tricky part: if Second Life becomes a concept that describes how people use a technology to create a community, things become complex when trying to trademark the name a community calls itself. In fact, you cannot trademark names of communities and claim them for your own purposes. Nobody can trademark, for instance, “The United States of America” — the community of Americans that live on a piece of land on this planet under a democratic government. Not even the Founding Fathers (who did address issues like copyrights and intellectual property on their documents) could claim the trademark on the Nation they were founding.

This is, however, another battle, requiring completely different weapons. Some of my lawyer friends tend to believe they could construct a very strong case arguing that although the technology behind Second Life allows the community to exist, it can exist — and does — separately from the platform that Linden Lab created. In fact, a lot of what this “community of users” does is outside the Grid — on websites, on Twitter, on blogs, forums, and the plethora of online services, where SL is discussed and talked about. It’s also done in the real world — on conferences, seminars, workshops, presentations. At classrooms and on the street; on meet-ups or informal discussions. All this wouldn’t exist without the technology, of course, but it also exists beyond the technology. In fact, this all leads to much more than “genericide” which Linden Lab is fighting so hard.

Imagine that the DARPA, when launching their first nodes on the Internet in 1969, decided to trademark the name “Internet” (an abbreviation of “interconnecting networks”). What would have happened then? We don’t have such a strong case for “netizens” (something that was much more discussed in the late 1990s) as we do for “Second Life residents” because the emotional ties of the majority of Internet users with the technology itself are much looser. However, in the 1990s, the “Internet” was not only technology — it was mostly its users. Although the model is quite different (the Internet always relied on open source technology from its start — it is defined by its protocols, not by the software that implements the protocols — a model that Linden Lab is agressively copying in order to allow InterGrids to operate), the parallels are easy to see. When Microsoft tried to register the “Internet” trademark — claiming, not unreasonably, that the vast majority of Internet users were using Microsoft’s products and services to get access to the Internet from their computers — it was fought back and successfully won. As a result, nobody can trademark “Internet” again — something that, over ten years later, sounds ridiculous. We have Internet products, services, software, and hardware — but we also have, mostly, people.

For myself, I’m not going to engage in this battle, and the major reason is that Linden Lab is not the DARPA with unlimited funding. Protecting their assets — and the trademarks are some of their fundamental assets, because the SL client is open source and the server has been reverse-engineered, thanks to the help of many Lindens involved in the process — is fundamental if we wish to continue to have something to call “Second Life” in the future. But why does Linden Lab worry so much?

It’s because of the competition?

Well, yes and no. I’ll follow up on this on my next post. It is my personal feeling that 2007 was the “turning point” for virtual worlds, the metaverse, and all the hype. I think we’re on Year One of the turning point. And the first hints came from the VW08 conference. It seems clear that, unlike what so many people have been saying for the past four years, no one is developing a virtual world with user-generated content. No one! The arguments for not doing so will be explained shortly, but, although the number of virtual worlds is certainly exploding, and lots more are under active development, they all share one thing: controlled content. Nobody is going to “risk” to do a “Second Life clone”.

So what this ultimately means is that Linden Lab already has won one battle. They are the only company in the user-generated content business — and, if I may argue, there won’t be any others. When the huge megacorps like Microsoft, Google, Yahoo, Sony, or, who knows, Disney, Warner Brothers, and so many others will start to roll out their own virtual worlds, the content will not be user-generated. At best, it will allow some content to be imported, under strict supervision and control, but that will be all. They will, very likely, have far more users than Second Life. But they will have nothing to do with what SL is providing now to their users.

What Linden Lab is fighting is the battle for what is Second Life. It might not be “the metaverse”. It might not be the “InterGrid”. But what it is, right now, is the only collaborative virtual world with user-generated content. And, naturally enough, Linden Lab wants to make sure that it remains that way, since it might be the crucial difference that will make their product different from the competition. They don’t want any “confusion”. They don’t want Google to say that their “social MMOG” is a “Second Life done better”. They want to make sure that Second Life, the brand, is only used to describe what Linden Lab wishes it to be.

I can hardly blame them for defending that fantastically radical idea that popped out of Philip’s mind in a basement somewhere in Linden Street, San Francisco, back in 1999.

One might argue that, in this, the residents are naturally siding with LL as well. For me, the strike is over — the battle for the clarification was won, even if the results were not what we expected (or perhaps we were just naive). We’ll have to be more careful on how we present Second Life to our (small) audience which influences the (big) mainstream, but we’re still able to push for LL’s vision.

That was what mostly mattered to me, although I’m naturally not very happy about what will be lost in the process.

Images presented on this article might be strangely similar to a certain popular character of some Disney movies, but no infringement was obviously intended. And oh, I was not talking about the silly redhead. 😉

About Gwyneth Llewelyn

I'm just a virtual girl in a virtual world...

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  • In the interest of accuracy, I’ll point out that the new trademark policy only explicitly forbids using a Linden Lab trademark in _second level domains_, not in subdomains (like secondlife.reuters.com) or in paths (like http://www.massively.com/category/second-life).

    (That’s not to say that domain registration laws for any given jurisdiction don’t have additional restrictions about using others’ trademarks in registered domains.)

    And for a bit of humour: it also doesn’t forbid using sl in the top level domain — so if you can get a domain name in Sierra Leone, go for it! “www.ilove.sl”, anyone?

    Anyway, the guidelines do explicitly permit using SL in subdomains (e.g. SL.Dell.com) or in paths (Dell.com/SL), so that would be the safer way to go. But that’s only if your domain contains the name of your organization, or an abbreviation of it (as is true for both Massively and Reuters).

    Of course, this topic is all very confusing, and we graciously thank our trademarked overlords for giving us 90 days to have the oracles interpret their demands.

  • As you know, Gwyn, I’m blogging my head off for a long long time and before that I used to use foruns and such, so I can say that I am writing on the net for the past 10 years or so. SL blogs are fairly new (as is SL), so i would guess that a fair amount of them became bloggers with SL and not start blogging about SL because they fond SL. They do not have a lot of practice…:D
    What I mean is: I haven’t seen anywhere the logical step for a blogger who just doesn’t want to write about a subject within the limits imposed by that subject. I would never ever write about something just on *these* terms (the nice ones) because I have to behave. No way. If I want to say that nespresso sucks and I have never in my intire life drank such a puke-coffee, I will say and write that (in fact, I love nespresso, but just for argument sake) and I will not have to prove my opinions with facts .You only write nice things all the time about something if you work for advertising that particular brand. Or if you are afraid of what “they” might do to you. And that, we had a lot here in this country, and not so long ago. Memories are very short and I was myself quite young at the time, but I still remember, dear, the day that somebody told me “from now on, people can speak freely”.

    I dont want to give you a inflated speach, but just to remind you what happens when people can not write the way they want and are always carefull with words: they either give up or go undercover. Now, LL(R, for your sake) is closing the way for people to mention some names, but they will still be searched in Google; I bet in 6 months, the searches will give back a fairly amount of hate sites, anonymous, so that these people cannot be banned. You are going to tell me “no one will read these sites”? well, just think what is the most popular twitter at the moment…

    I understand your point of view, is very ok, I just don’t agree with all this.

  • “For trademark issues, banning would be a last resort.”

    True. And “ONLY” 6 high-ranking Al Qaeda members were tortured.

    How often LL will use banning is not even that important. Even just holding that as a threat over our heads is outrageous enough. I think that the inclusion in the TOS was LL’s biggest mistake and has been at the root of most of the negative reaction from the SL users. It buys LL so little and it costs them so much, they should just get rid of it, and do it with a heartfelt apology.

  • Oh, actually, I don’t agree with Linden Lab. In fact, I totally disagree with the way they’re treating us.

    However, there is quite a difference in “disagreeing” and “doing something about it”. In this case, it means a legal fight: getting hold of a good lawyer in California that works pro bono and file a lawsuit against Linden Lab, very carefully stating that they have no further claim on the trademark in the manner they’ve stated, ie. that essentially they cannot trademark the “name for a community of people”.

    Now, this obviously means a much stronger fight — not one of raising awareness (which LL can suppress easily), but one of going to court. As we saw on Bragg vs. Linden Lab, when forced against the wall, LL prefers to settle on an agreement than endless pursuing their case (which is damaging against their interests). So my feeling is that by going to court, LL will negotiate much friendlier terms.

    Now that is my personal point of view 🙂 I think we did what we could to stay away from the courts, and we saw what came out of it. The fight now needs more powerful weapons 🙂

    However, in my case, I’m not willing to sponsor a lawsuit against LL, nor encourage anyone to do that. It’ll get nasty. Bragg, for instance, got his avatar, his land, and his money back — but his reputation was hopelessly ruined in SL and RL. Nobody will ever make a deal with him, even if, technically, he “won” the case (or, rather, forced LL to settle on an agreement).

    And, who knows, perhaps Bragg’s lawyer is reading these lines and thinking “hey, what a cool idea, why don’t I sue LL for this…”.

  • Once upon a time, in a Small Country, many, many years ago, people couldn’t freely say what was going thru their minds.
    The few of them, that had the courage to say what they really where thinking, were banned(i mean, they went to jail..).
    But one day (25th of April) a man or a woman,( I don’t really remember because i was a kid and i couldn’t even speak) had the idea of going to the streets whid the weapons.
    Instead of shooting that weapons, they put one flower on each gun, and no one was injured , because, there were no shots.
    Despite this, the revolution was made. I Now i’m a grown one and i live in that small country, but now, i can say whatever goes thru my mind.
    I will keep doing it, and i thank that man or woman that had the idea of puting flowers instead of bullets.
    I Will keep the flowers in all my blog posts, but i’m sorry Linden Lab, I will say whatever i want i will not permit anyone, to guide me in the way i must say my words, even if they happen to be Lies or truths.

  • For the sake of the argument, Cat, writing on your blog saying “I hate LL because it’s my personal opinion” is not disparaging 😉

    Writing “I hate LL because they’re crooks and are cheating us out of our money and SL is just a pyramid scheme, so stay away from it” is!

    There’s a lot of difference in the content of those statements, even if the form is similar.

  • Dear Gwyn,

    as always, an eloquent statement. For once, however, it rings hollow. Allow me to quote something to you :

    We want LL to revert on the policy in both points, by

    1. generously licensing established sites, blogs, forums, services and such created under the provisions of the old policy and obviously not intending to infringe on LL’s trademarks (intent is the cue).

    2. ascertaining that they do not presume to ban residents for exerting rights to free speech they have under local legislation off-world. Ideally, section 4.4 of the terms of service should be removed entirely — it provides no legal use to LL, except as scare tactics against their own users. LL would not be any worse-off legally if they removed it, and removing it would restore some good faith with the community that LL have lost.

    This is part of a document several SL residents created together to present to Robin Linden on her office hour. The part quoted here was the final edit, and it was written by the spokesperson of the group (who did present the key points to Robin later with her usual eloquence).

    That spokesperson was called Gwyneth Llewelyn.

    This is what you condensed as the goal of our protest, as our aspiration in this protest : 1) make sure nobody is banned without warning for perceived trademark infringements happening in-world, 2) make sure nobody is banned at all for perceived trademark infringements off-world (there are courts to handle this) and finally, 3) find a lenient grandfathering agreement for established community sites.

    The Lindens have acceded to only one of these : not to ban without warning. As to the other two, they have affirmed their will indeed recur to banning for off-world disputes, thus putting the ToS over the law ; and they have refused any kind of grandfathering agreement (pretending that we do not have to rewrite old posts is such an agreement verges on the ridiculous ; that was never an issue. You are splitting fine hairs indeed finding some kind of compromise there).

    Gwyn, had you stated that, now that the Lindens have made clear they will enforce the trademark guidelines by force if need be, banning where courts would not let them proceed, yielding to superior power is the only way, I might have disagreed, but I would have understood. But you didn’t — instead, you told the world that, against all evidence, all is well and that we can make merry again.

    You know full well we did not fight for the right to promote LL’s products and trademarks. We fought for fairness, and consideration, and the right to speak as freely on our blogs as the law allows us to, without having to fear losing our Second Lives.

    At least, most of us did. Maybe we were just wrong to assume you were with us on this.

    Goodbye, dear Gwyn. I wish I could say it has been a pleasure, but I can safely say it has been an education. For what’s its worth, you have my blessing promoting the Linden agenda henceforth. I have decided on another course for me.

    I am finally claiming the world Philip made as my own.

  • Rui, take into account that the Portuguese laws on freedom of speech are quite different from the US laws. The biggest difference in our tiny little country is that our freedom of speech is protected against everything (and so is the right to fight back in court against defamation and libel).

    This means that if you send an email to a colleague at work saying “my boss is an utter idiot”, and that message is intercepted by your boss, three things happen:

    1) Your boss has committed a crime by reading your email. Even at work, the right to privacy to your mailbox is guaranteed, even if the mailboxes are property of the company you work for.
    2) You cannot get fired arbitrarily without due disciplinary process. So your boss would have to file an internal disciplinary process to prove you’ve been actively disrupting the work environment to justify firing you. And he can’t use your email as proof.
    3) Finally, nobody can be fired for emitting their opinion. In fact, that’s an universal right that is guaranteed to all Portuguese citizens: you cannot commit crimes when expressing an opinion, and this holds true in all circumstances. (An “opinion” is “ideology”, and you cannot be arrested for defending an ideology, no matter how crazy it might sound)

    Now contrast that to the situation in the United States. What the US Constitution protects is the right to express your opinion against the Government. That means that the Government cannot pass laws that prevent you from speaking against them — no matter in which form. They can’t also press charges against you if you emit a contrary opinion against your Government (that’s why I have such a difficulty to understand how the Patriot Act was approved by the Houses…). More interestingly, they have an extension towards “public figures” (ie. not necessarily Government officials — but people like actors, popular speakers, etc.) which basically state the same thing.

    Where US law is fundamentally different is that it doesn’t cover the freedom of speech rights inside a corporation. Basically, in private, you’re able to do what you wish, set the rules you want, impose what you like, and nobody — not even the Government — can interfere. The right to privacy is not guaranteed on the US Constitution, although I think that all States, on their own constitutions (yes, each State has one), do respect privacy. However, corporations are absolutely free to restrict “freedom of speech” exercised against themselves by their employees, clients, partners, etc. They have the right to do business to whomever they wish — and are not compelled to provide service to whom they dislike. They can also fire whomever they wish.

    The fundamental point here is that Linden Lab is not required to provide service to a customer (a resident) that aggressively attacks them in public — specially if that resident comes from a different culture where freedom of speech is universal and not restricted to “special cases” (eg. only against the Government). They are fully entitled — legally — to prevent access to service to whomever they wish. That’s also constitutionally guaranteed, and embodied in a lot of laws — namely, the ability to sign with your clients any type of contract you wish (so long as they don’t violate any existing laws). This is very typical of common law systems, where basically “everything is allowed which is not explicitly forbidden”.

    Except for the British, we Europeans are more used to civil law systems, which operate on the exact opposite terms: “everything is forbidden, except those things that we have a framework of laws to explicitly allow it.” Thus, corporations in Portugal cannot prevent their customers to exercise their freedom of speech — and cannot deny them service — and furthermore they cannot sign “any type” of contract with their clients, but have to work within a specific framework.

    In fact, the LL ToS is almost completely void in any European country, since it doesn’t “fit” in any of the frameworks. The most notable case is the one about LL seizing your money and your assets if you are banned — this would be a crime in Europe, but in the US (and, to a degree, on most common law systems, of which there are just a handful in the world), it’s just a clause in the contract — which you either sign, or don’t. But if you sign them, all are valid.

    So this issue is not really a legal one, but a moral one, coming from a different culture. It revolts us Europeans that corporations have the right to deny service based on our opinions. But, the plain and simple fact is… we’ve signed a ToS under the Californian jurisdiction, and we can’t avoid it.

    Morally, of course, I’m revolted — but that comes from my education, my social background, the context I live in. Legally, LL is right — they have the right to do as they please. And we have the right, of course, not to sign the ToS if we dislike it.

    But once we sign it, we forfeit the right to discuss it under our jurisdiction’s legislation, but have to abide by Californian law — even if we dislike it.

  • Thanks Gwyn! Every time i came here, I learn something newfrom you.
    Be back soon 🙂

  • Oh, I don’t think that all is well, Rheta. All is not well. I might point out Tateru’s article on Massively, where she clearly states the fundamental aspect of this clarification by LL: that from now on, LL will, in extreme cases, refuse to provide service if we disagree with them. This is a novelty in LL’s official position. So far, to the best of everybody’s memories, they never made such a strong statement.

    The other thing is — what did we “win”? Well, awareness was raised. A new procedure — also unique — was established where residents are allowed to reply to bans due to trademark infringements, and even a form of appeal. Of course, ultimately, LL might ignore that all — but if they did, they would be really going over the top by publicly claiming something and behaving otherwise.

    The two other issues were much more trickier to “win”. What LL basically did was simple: say “no” to the rest of our requests.

    Where do we stand now?

    We have three choices:

    1) Continue the protest, but making it louder (or make it more creative).
    2) Fight in court.
    3) Accept a compromise.

  • Dear Gwyn,

    had you outlined these three options, be it on your blog, be it privately among those who helped you make the protest what it has been until now, and concluded after discussion that for you, option 3) is the only valid one, as you personal choice, no conclusion intended for the issue at large, nobody would criticise what you did. Retreat can be the better part of valour. I’d be sad, but it will always be your own choice, as it is mine to go through with 1) first, 2) second, because I can’t see where 3) would be an option. But that is not what you did.

    What you did was decide, alone, that your own choice would dictate what to do with the whole protest movement, and carried over that choice from the personal realm to that governed by your standing as the spokesperson of the protest. Without consulting anybody, you cancelled the rally on the Governor Mansion. Without consulting anybody, you told the press the protest was off. And you stated, here and on Twitter, that keeping the protest alive would be splitting hairs, suddenly calling things non-issues you fought vehemently against a few days back.

    Dear Gwyn, unlike mine, your business is Second Life. I can understand how that makes you wary of risking further protest now the Lindens have donned war garb, and I respect that conclusion. It would be unfair and preposterous to do otherwise. Was I in your position, I might do the same.

    But doing so is your personal decision. Which means that once you’ve taken it, you have lost all right to speak of « we », and to present yourself as part of the protest against Linden Lab’s policy.

    You’re not part of that any more Gwyn. If you won’t fight, please stand by gracefully.

  • Gwyn you’re such a good writer but you’ve completely caved on this issue. Nothing has really changed, the clause that there is no need to have is still there. They already have “any reason or no reason” this extra clause is made redundant by that but putting it in the terms of service makes it a threat to freedom of expression, no matter how they dress it up with niceties.

    The grandfathering of domains that abided by the previous policy guidelines is an important one and one that should be respected. Those who were in breach of previous guidelines I feel for them, but they were in breach and have little room for complaint but SLUniverse (for example) was not breaching previous guidelines and to move the goalposts on that issue is not a good move and is one that should be debated.

    We should have been having this debate before the policy was announced, whereas it’s too late for that now it’s a point that we should be hammering home to Linden Lab, communicate with us, not at us.

  • Ok, now I am sure about what I understand in their actions. That trademark issue really didn’t borrows me, and I don’t really want to wast my time making “circles” around the subject.
    What borrow me is that Linden labs is worried with their trademarks, while in the grid the copywriter (between residents) still up. :/

    They just think in their things and all the residents for them are just a couple of NOOBs who doesn’t deserve nothing or almost.

    When I’ve created Myspace profile I really took care of posting the words “Copyright: “Second Life® and Linden Lab® are trademarks or registered trademarks of Linden Research, Inc. All rights reserved. No infringement is intended.””. Why?

    Simple. Because I don’t work for them, I really don’t want to promote them ansd their weird work. Just to promote my Avatar and other Identify where am I. Nothing more to say about It. But nice they make the things clear to other Avatars.

    Cy

  • Rheta, I’m obviously available to discuss other strategies for protest, that goes without saying. The call for clarification was what motivated the 3-day strike. LL just posted their clarification on the last day of the strike. That was the first step.

    LL made their move with that. Yes, they provided clarification. No, they’re not willing to concede in any point, except the one of “banning without fair warning” — that was the only thing that was really clarified.

    They made their position more clear. Instead of “legalese”, they answered our questions — and questions that so many asked — in plain English. For me, their answers were quite clear:

    1. Section 4.4 was not removed, not changed, and LL reinforced that they would use it — within reasonable limits, but definitely use it — to refuse service to avatars whose owners don’t comply with their trademark policy.

    2. There is not going to be any grandfathering of domain names.

    3. Old content written in the past 4 years will not be subject to LL’s analysis, but new one certainly will.

    4. Dubious and doubtful cases will be settled with LL individually, one by one, at their will.

    So, the protest was to get clarification, and clarification we got.

    Now the issue is — the clarification didn’t make things better. Quoting myself again: no, all is not well. There is a compromise by LL to restate more clearly what they intend — and I think it’s reasonable to assume that they made an effort to be clear — but the compromise doesn’t go as far as compromising on the issues (except for, well, minor issues).

    So it’s clear to me that LL is not going to change their position (like they didn’t change so many other things), and they’re pretty stubborn at that.

    So what should the next step be? I’m repeating myself, I know. Protesting for protest’s sake will not make LL change — we know that now. There are no “openings” in their argumentation where we might breach their wall. In my mind, this means that the fight now has to be targeted directly to fight against their trademark claims. As said, that’s a nasty business, and it means that people have to be aware of what it means: suing LL in court.

    Now, many, including Cat Magellan, have asked for legal advice by Californian lawyers. There is a pretty good chance of fighting LL in court and winning the issue. It will, of course, be a nasty battle — one where all parts involved will invariably lose something (namely, reputation) — but there are reasonably strong arguments for winning.

    So again I ask you: between the three choices — protest louder, suing LL in court, or accepting compromise — what do you wish to do?

    Personally I’m against “protesting for protest’s sake”. We can’t say that LL didn’t “address our concerns” — they did exactly what was asked, making their position clearer, and refusing to go beyond that. So to continue to insist, it needs to be a different protest.

    The only suggestion I can make is to meet again in-world and throw some suggestions around, write a new document, get a few friendly IP lawyer to assist in the discussion, and see what we can come up with as a next step on the protest. Very likely it will have to involve a “threat of a lawsuit” to catch LL’s attention.

    I actually like Vint Falken’s Trademark Parody Contest as a way of protest. Parody is very well established as a legitimate way to both use trademarks and make fun of them as a means to criticize a company’s position. It might be an idea…

  • it was Prok and other proponents (not in any order) of virtual law in S-bloody-L, biting LL arse, whining & begging them for law-as-mechanism to come and regulate S-sheise-L — and they had (as usual) very short sight and even shorter mind and brain, forgetting altogether old saying “beware what you are asking for – you might actually get it”

    now it came as you asked, boys and girls, and there is no foreseeable end to this – welcome to S-crappy-L end-of-Eden-on-living-platform. You were asking to substitute immersion with law-augmented-virtual-reality, same time blaming augmentalists as if there is no tomorrow… Law comes only ones and for very long – welcome to metaverse working on real/meat world rules. You’ve got what you deserve.

  • Let’s discuss this somewhere less public, shall we 🙂 ?

  • While I typically am loathe to add yet another verse to what is becoming a rather lengthy song, I think that this subjects deserves inclusion, don’t you?

    “Dear Linden, Dear Linden,
    I just don’t understand
    The new terms of service
    About using your brand.
    Registered trademarks
    And copyright signs,
    Must I use them all of the time?
    Signed, a blogger

    Blogger,Dear blogger
    We hear what you say
    And at Linden Lab (R)
    We don’t like things this way
    But our lawyers insist
    That it must be done
    We sincerely hope it won’t ruin your fun
    Signed, a Linden (TM)”

    –Niko Donburi (aka The “Weird Al” of the virtual world formally known as Second Life)

  • But what it is, right now, is the only collaborative virtual world with user-generated content.

    The discussion about the trademark policy in interesting enough in its own right. But what’s MORE interesting is your insight into the reasons why LL has chosen this moment to fight this particular battle. And I think you’ve hit the nail on the head regarding the future of the Second Life environment (did I do that right?) and, in particular, regarding where we can expect LL to focus their competitive efforts.

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