I’ve received a press release from the SL Bar Association SLBA) announcing that Agenda Faromet, who in the physical world is an attorney specialising in privacy and internet law operating out of San Francisco, will be discussing the July 16th, 2014, changes to Section 2.3 of Linden Lab’s Terms of Service and also the recent changes to the Lab’s Skill Gaming policy.
The press release reads in part:
Linden Lab has recently announced changes to the Terms of Service associated with Second Life. This change comes almost a year after the major controversy that erupted last year over a substantial change in section 2.3 of the agreement with users of Second Life, related to the license claimed by Linden Lab in works created by creators in-world. Please join us for a lively discussion of the actual language changes from the prior terms of service. Agenda will also discuss other changes implemented by Linden Lab, including the gaming policy.
The discussion is set to take place in the SLBA courtroom, starting at 10:00 SLT on August 2nd.
I hope to be able to attend the meeting and provide a transcript through this blog.
About the SL Bar Association
The SL Bar Association (SLBA) is a group for legal professionals and others interested in legal issues in Second Life. It is registered as a 501(c)(6) organisation in the United States, and operates in Second Life from the Justitia Virtual Legal Resource Village, which serves as a resource for both attorneys and the general public, and has law offices available to rent on the square, along with general legal information on a variety of topics. Rental units are also available at sea level.
Details of SLBA talks and presentations can be found on the SLBA website, together with further information on the association and its members.
Inara Pey: Living in a Modemworld 
Second Life TOS is not legally enforceable anyway.
It is quite clearly a unconscientious Contract of Adhesion, in that they hold our accounts, goods we own, and funds, hostage unless we agree to their terms.
Granted there is no account, or goods, at the start (original contract), but then they change the contract to grant themselves vastly more rights, without advance notification, or the ability to opt-out and regain our goods/funds, or the ability for us to negotiate such.
They’ve already had to settle a previous lawsuit on similar issues (locking someone out of an account, without compensation, for breaking their terms – Bragg v. Linden Research, Inc ).
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I’ll caveat this with the usual IANAL & this is a personal interpretation of the court holdings issued with respect of the Bragg vs. Linden Research case.
While at the time, Judge Eduardo Robreno did indeed hold that the Terms of Service was a Contract of Adhesion, he also limited that holding by noting that such a claim might be defeated if there are “‘reasonably available market alternatives'” available to the weaker party.
In 2007, it’s fair to say there were no such alternatives. In 2014, with the rise of, and ease of access to, OpenSim over the last few years, particularly those grids which offer their own economies and business opportunities, it would appear that “reasonably available market alternatives” are now available; so the claim that the ToS is a Contract of Adhesion may not be so clear-cut.
It’s also fair to say that the ToS has yet to be found “legally unenforceable”, as we’ve yet to see a case / action brought against Linden Lab actually get to trial; they’ve generally been settled well before that.
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If I reject the SL TOS, the following happens.
Perma locked out, without recourse.
Any funds i have earned (still in game), confiscated.
My creations & purchases, confiscated.
They continue to earn their percentage on any Marketplace sales of my goods.
And my right to remove my purchases and creations from the SL service…is none.
This is despite Linden Lab clearly saying I own my goods. Despite USA law guaranteeing me automatic rights for IP on my creations.
All of the above have nothing to do with “market alternatives”. LL has my property in their system and will not release it, nor allow me access to it – unless I agree to their conditions.
Any court will judge that a contract of adhesion – some might even judge it blackmail, or theft (particularly since they continue to earn money from my confiscated goods).
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So I don’t come across as completely anti, I can totally see how complicated some of these issues become, and choose to abide by LLs TOS.
I can just imagine how their business model would collapse if users like me could force a removal of our IP/content…. in my case that would be 6 years of sales, over 100,000 unique users would be affected. If several long term makers did that – the uproar would be horrendous.
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Heh.
Our replies cross in the sub-etha. Again, I’m not disputing your view on things, just trying to step back and look objectively at matters as a court might – particularly given Robreno’s holdings and the caveat therein, which woul likely affect future court cases.
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I’m not disputing any of what you say. I’m pointing out that many of the self-same points were raised in the Bragg vs. Linden Research case, which you cited. In that case, Judge Robreno, presiding, clearly caveated the degree to which any claim of contract of adhesion can be made, and yes, he did cite the availability of market alternatives. So, like it or not, things are not necessarily as clear cut as you might like to think, and a court might not automatically agree with your view on matters.
Similar claims were raised in the more recent Evans et al case (the plantiffs even had the same lawyer as Bragg), and things there were similarly not so clear cut, with both sides again opting for a settlement rather than trusting things to a jury outcome.
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Interesting subject. I’ve seen discussions around this with the recent TOS change because if you went to the website before logging in inworld, you were presented with the TOS to agree to before you went any further. I’m not sure if this is a new development because like most people, I’d have logged in inworld and agreed to the TOS there.
Not being able to login inworld or via the website does most certainly limit one’s options, I wonder if LL have a policy on people being able to withdraw their content and any money in their Linden and US dollar balances if they do object to the TOS.
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They don’t. If so – it’s not available to us to read.
Their system is somewhat ridiculous… Even if you have enough LD to cover tier, but forget to exchange it to USD, and your tier becomes overdue (to the point of lockout) You cannot convert the ld to USD, nor will LL staff on your behalf.
You have to find the USD elsewhere and send it to them. No-one else is allowed to pay it for you. You cannot use another’s bank card. You cannot pay via Paypal.
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“They don’t. If so – it’s not available to us to read.”
That’s not actually correct. The Terms of Service are accessible via the Lab’s corporate website at http://www.lindenlab.com, no log-in required. See: http://lindenlab.com/tos.
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Aha… caught me not reading latest versions of TOS 😉
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Yeah, people tend to forget that LL have a corporate site as well as the SL website. 🙂 .
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I don’t remember coming across any such provision of access. IIRC, the suggestion given by the attorneys at the October 2013 meeting was that anyone who finds the ToS to be unconscionable and is leaving SL as a result, should accept it ToS, log-in, withdraw their funds, delete any content they have displayed in-world themselves or hold in their own inventory (copies of any such content displayed “elsewhere” or held within the inventory of other users is obviously exempt from such right of deletion) and then quit. That way, they avoid any additional complications arising from simply rejecting the ToS.
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Until I see someone willing to go to court just to show how wrong LL tos is, all the rest is mere speculation and i wonder how in fact Linden Alb just wishes to have an legal excuse to shut down sl for good.
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On whether it’s actually possible in any sense for anyone to “steal” digital data (because “theft” as a term keeps on being used), perhaps this verdict could be indicative, and may even be a legal precedent.
https://www.techdirt.com/articles/20140724/02483327986/yet-another-court-rules-that-digital-data-is-not-property.shtml
Could this be brought to the panel for discussion?
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