The Request for Clarification from Second Life® Bloggers: Blogger Strike?
In Second Life® Bloggers Require Clarification, Gwyneth makes some valid points on stuff that many bloggers are up in arms about. I write many because yesterday I had about 18 tabs in my browser open and learned the folly of using an ALT 0174 keyboard combination with the num-lock off. I ended up losing the 18 tabs as my browser went home. My apologies if you wrote about it and I didn't link to you, but those 18 tabs are just... dust in the wind. :-(
From the start, I will write that for the site Your2ndPlace.com, I have communicated that the site will cooperate and act in good faith with the trademarks of the synthetic world of Second Life. But it isn't as clear as it could be, and it does give rise to questions. My post there simply says Y2P will work with them on issues that they may have on this site. What those issues may be remain unclear, so it would have to be reactive. And that is sort of the point.
Back to Gwyneth's post.
Dear Linden Lab®,
Your recent change of policy regarding the usage of your trademarks — Second Life®, Linden Lab®, and others registered by Linden Research Inc. — will effectively prevent the operation of the very vibrant community of bloggers, forum posters, websites, community portals, and even 3rd party services, that have provided Linden Lab® with links and driving traffic to your blog, and raising brand awareness for free for your product Second Life®.
Probably thousands — if not dozens of thousands — of sites include (now illegitimately) the name “Second Life®” or “SL®” somewhere in their names. From sites like Reuters (which has a Second Life® channel) to whole companies that have a “Second Life® Division” (and promotes your product by the explicit naming of it), a plethora of online communities, products, and services — some free, other commercial, many in the limbo between both extremes — include, in some way, your registered trademarks.
She's right. Basically, Linden Research, Inc. has come about in policy such that the cannons are now, unwittingly, pointed at a community that was the wind in their sales. This change, as Benjamin Duranske notes:
...While it is unfortunate that Linden Lab waited so long to do this, the reality is that they have the right, and in a certain sense, the obligation to police these marks. If they do not enforce their rights now, they risk an abandonment argument later. In fact, one could argue that the four-plus years they’ve at least partially ignored uses of these marks constitutes abandonment, but that’s a chancy argument and an expensive fight, and it’s probably not one that many Second Life-based organizations are going to be willing to take on.
My conclusion? Users who preach respect for intellectual property should take steps to move into compliance with Linden Lab’s request...
Linden Lab is right to do this. And they are wrong to do this. Do the rights outweigh the wrongs? Gwyneth goes on:
...Under those very friendly terms, a plethora of fansites of all sorts popped up, driving traffic to Second Life®’s main website, its blogs, forums, and other related sites — making SL®’s own ranking quite high on Google, Alexa, and other systems — while at the same time, in a period of a little less than four years, allowing the number of registered users to skyrocket from 10,000 to 13 million.
Fansites, blogs, 3rd party sites, Second Life®-related online communities, 3rd party sites that create products and services related to Second Life® are the “off-world” counterpart of the dynamic and enthusiastic community that made Second Life®, as a brand, get world-wide recognition — without the need for Linden Lab® to spend millions in advertising and campaigns on the media. We worked for free on the promotion, brand awareness, and market recognition of your products — while, at the same time, we also worked for free creating the fantastic content of the 3D environment that makes Second Life® a place worth to visit, to enjoy, to chat, to socially connect, to do business, and launch the pillars of the upcoming metaverse — fulfilling Philip ‘Linden®’ Rosedale’s dream of having more users in Second Life® than on the Web.
We’ve been the ones ultimately promoting that vision, spreading it around, and making sure that the world noticed your product and your brand. We were very successful — thanks to your gentle and encouraging former policies...
Her point is that much of the success of Second Life could be attributed to the community, including bloggers out there. She's not wrong by any stretch, but it is hard to quantify how much of an impact bloggers have on the success of anything. Marketing buzz certainly gives spikes in traffic (thus the marketers typically like weblogs), but consistency, too, is key. And let us be frank as well - the blogosphere also seems to damn Second Life as much as praise it. In a way, this could be a way for Linden Lab to mask the more turbulent growth period in 2006 and 2007 - where there was, most certainly, a lot of criticism.
The change in policy is a little reminiscent of the gunfighter that cleans out the town and is then asked to leave afterwards when they do not gracefully ride off into the sunset. Is Linden Lab dismissing the community? I don't think that they intend to, but the message they are sending certainly can be read that way. I really do think that they're bulking up on their trademark ownership and copyright ownership to swell their assets a bit now. With Philip Rosedale stepping down, it is difficult not to miss how this could lead into the IPO or buyout that Rosedale has denied so far. The denial looks a little bit like a 5 year old with chocolate all over the face saying, "I didn't eat any chocolate!". Of course not. All of it is on your face...
Gwyneth continues:
...We consider that an appropriate response should be forthcoming in the next few days, or we will be forced to shut down our own blogs, websites, forums, community portals, and other 3rd party sites to avoid litigation — and thus depriving Linden Lab® from the traffic generated by millions of direct links and millions of viewers that learn first about Second Life® through all those sites.
Personal note: This blog will enter on strike on April 15th, 2008, for a period of 3 days, if no clarification by Linden Lab is published before that date.
So there it is. A blogger blackout on Second Life starting on April 15th? It certainly is something that should get some attention. Will I participate in a blackout? Speaking for myself - I suspect I may. I will write about other virtual worlds, as well as other things - but I cannot and will not speak for the others who write here on this. Solidarity is important, but solidarity is meaningless without free will.
I'll put my shoulder next to Gwyneth in principle. I won't stop writing, but I will not write about their particular synthetic world if clarification isn't given. That in no way is the official stance of myself as publisher - I wrote the publisher stance here - but as a blogger, I'll stick with the strong community message on this one. I'm not against trademarks. I am against the sudden shift in policy that alienates some parts of the community.
I respect the trademarks, but I do not respect how this has been handled by them. As I noted before, Your2ndPlace.com has little to worry about in my mind - but if my neighbor's house is on fire, I'll be out there with buckets. Clarification is needed for a lot of the community who, unfortunately, built foundations on the sand of past understandings.
While the wolves fight over dinner, it is time to get the sheep armed.
Technorati Tags: Business Culture Linden Lab Metaverse Miscellaneous Op/Ed SecondLife trademark blogosphere
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Seriously?
With all of the trouble they've been having, you would think the last people they would want to piss off are those hardy souls who care enough about 2L to hang in there through the crashes, borking, and downtime. I know people who now refuse to mention 2L by name in their blog, even though everything they're blogging about takes place in-world. One blogger I know in particular now replaces every reference to "Second Life" with "virtual world". How can that be good for LL?
I can kind of understand why they're not defining things more specifically. As soon as they do that, those who they are most likely targeting will start looking for loopholes. Meanwhile, the vast majority of us who simply want to enjoy what we do and share it with others are left to poke sticks in the legal minefield.
Incidentally - I didn't stop writing.
Why? I talked to legal folk.
Second Life Consultant
Not convinced
There are some issues, the model of business in Second Life and their tag line suggests more of a partnership than you'd get with many other business but, I have the fansite guidelines from last year on my computer from when I downloaded the fansite pack. The distinction then was between commerical and non commercial fansites:
"No Branding. You may not use the Linden Lab or Second Life name, or the “Hand” logo, within your masthead or other primary branding for your website.
No Sale of Goods or Services. You may not use the Linden Lab or Second Life name, logos or other marks on any goods or services offered for sale on your website, whether physical, digital or virtual."
These guidelines already existed. Linden Lab have undoubtedly taken a more corporate line in their policy wording, but they have every right to do so. I'd support a campaign to allow the use of "in Second Life", rather than plain SL or inSL but these guidelines are not so greatly different from previous guidelines and as far as bloggers are concerned, these guidelines are aimed at associating products and services with Linden Lab's brands, they aren't aimed at bloggers who just generally want to blog about Second Life.
Poor communication? I agree, I posted on the blog that it was another overnight policy change and was it so difficult to give prior notice, I was told that the 90 days grace period is notice but to me that's not prior notification, this discussion should have been taking place before the policy was annouced.
verbiage
The guidelines may not be greatly different from other companies (although I'd argue the various language claims, including the unprecedented 'licence' by which journalist are allowed the use of the company's name provided they do not criticise the company, are radically different) . The point is we have another unchangeable decision handed down from on high without I suspect, a lot of review or consideration. The company that may not be named suffers from corporate schizophrenia. If you ask why a boot is sticking out of your posterior then the company that must not be named is all touchy-feely caring-sharing and we're all in this together. If you use the company name in unapproved ways they'll sue the tripes out of you and your issue unto the fourth generation.
This approach suggest there is no strong hand in decision-making and too many decisions are being made at too low a level in the company.
Yeah, I get the idea - and I agree.
I heard it was being discussed at inhouse office hours, but that means little to me as well. Linden Lab really should come right out and talk - initiate dialog - discuss. That is where the blog can and should shine.
Clearing up all of this is really their part to play in this. The community will work with them, but they have to work with the community.
Second Life Consultant
bad draft and bad drift
The guidelines are actually not written, as many have blogged, in lawyerese, That is one of the problems.
A competent lawyer would at least mention the fair use doctrine and would certainly not have signed off on the nonsense that matter critical of the company must not use the company's name. (See US Constitution, Amendment I) A competent lawyer would have made clear there are different audiences for these guidelines and that intellectual property claims of this type are largely restricted to the company's commercial competitors, not its customers. A competent lawyer may even have quietly suggested that some consultation with the community was in order before threatening all manner of fire and brimstone.
I do not think the author of these guidelines is an evil person or was acting maliciously. Nor do I think the company's lawyers are this incompetent. I do think the company's decisions are not being checked or reviewed properly because of a leadership vacuum. The transition to a new CEO needs to be short. And the new CEO has to see their mission as running the company, not advancing rationales for poor performance as elaborate as they are vacuous.
Check others
The general guidelines are very very similar to the guidelines Microsoft publish. There is of course a difference between the model of Microsoft and the model of Linden Lab but in terms of how both companies are setting guidelines, there are very many similarities.
Check Coca Cola.
Think about it.
Second Life Consultant
Fair use doctrine is mentioned.
It is actually mentioned where people aren't looking:
Unauthorized Uses of Linden Lab's Trademarks, paragraph 8:
I'm certain that this wasn't malicious. But I am also certain that they didn't think it through on the community end - or they simply don't care too much about what the community thinks. 90 days is a long time for anyone to speculate, especially people who don't have lawyers or people who aren't inclined toward this sort of discussion.
Second Life Consultant
fair use and fair boilerplate
I am one of those sad and unfortunate obsessives who actually does read terms before accepting them. I agree most companies post terms of use that appear quite similar to those posted by the company that must not be named. Their reference to the fair use doctrine is an example. I would still argue these terms are a whole lot broader than any I've ever read and make unprecedented claims about particular kinds of speech.
Intellectual properly is an exception to the right of free expression. The test is not whether particular speech is outside fair use, as though intellectual property covers the whole world and there are limited zones of free expression, the test is whether particular speech is (1) subject to a copyright, trademark or patent and (2) not within the fair use exception to the law of copyright. Microsoft explain this rather well:
The company that must not be named, whose guidelines show little sign of actually understanding the fair use doctrine, describes that doctrine as if it applied to all expression, not just copyrighted matter, and allowed them to make IP claims against the whole world. Note that you can never copyright an idea, only the physical expression of that idea.
The guidelines confuse wordmarks with particular phrases. The new logo is a wordmark. The various brand names are not. I do not recall seeing a company commanding users, journalists and strangers when they may use the possessive case or a generic noun in speech about that company. If anyone can point me to similar textual commands by another compnay I'm happy to look at it.
I am not really concerned with the new logo. Words matter. The right to use words also matters. Trying to assert rights over particular words is a danger to public policy that goes way beyond the worth or value of any virtual world and touches central issues of human rights. It is doubleplusungood.
Microsoft
Microsoft have similar guidelines and to be honest I'd say that someone from Linden Lab read those guidelines before this policy was implemented, or those guidelines are pretty much a standard template.
We can name Linden Lab, we can say Second Life, we can say second life too. If Linden Lab start quoting the TOS and threatening to close accounts because people blog without the correct context then they are holding their users to a higher standard than the rest of the media the world over, because the media do not quote trademarks in that manner.
However if you're using the Linden Lab brand to advertise your product, then that's a different story.
I agree with you.
The trouble is getting Linden Lab to say something like that.
Second Life Consultant
exactly
I susepct this is an exercise in boilerplate where someone's copied several other TOS documents and then picked the eyes out of them without a lot of thought or review at a higher level. Using boilerplate is a common legal and corporate practice and often leads to disaster.
The LL guidelines are different from the Microsoft guidelines in the breadth of their claims, in the poor drafting of the document, and in the failure to distinguish which audience they are writing for. Imposing rules of grammar and syntax is not a common feature of these documents. Choice of law and choice of venue clauses are common in contracts, including terms of service. That does not mean they are all the same or that they are always upheld by courts.
LL has developed a new and original approach. Courts enforce such clauses in terms of the law of conflict of laws. The LL instrument purports to suspend the law of conflict of laws. It is hard to see how they can plan on enforcing a clause in terms of a body of law they claim has no application to them.
It's not enough to say 'looks the same' therefore 'is the same'. Most national constitutions, including places like China and Zimbabwe, contain a bill of rights with roughly the same look and feel as the US bill of rights. That does not mean you or I would like to find ourselves on our feet before a Chinese or Zimbabwean court. Details matter.
Nice ! And I do agree and
Nice ! And I do agree and I've decided to close my blogg dedicated to my SL (oups sorry) newspaper
Nancy Ducatillon