New ToS released

M Linden has announced the release of a new SL Terms of Service (ToS), that will come into effect from the 30th April 2010.

The timing is interesting, as it coincides with the Third Party Viewer (TPV) Policy going into effect, and it is interesting to note that M’s post also refers to all the policies relating to the ToS as being “new” (i.e. updated).

As to the ToS itself, the language has evidently been cleaned up with a view to making it somewhat more comprehensible – even if the document is much longer than the older ToS.

However, longer does not automatically mean better.

Overall, the ToS appears to encompass something of a paradigm shift that has been hinted at in various blog postings from LL for a while now: that they no long consider themselves a platform provider, but rather a service provider, licensing aspects of their service for use, ostensibly as the user requires them.

Some elements of this move appear to be “good” – on the land front, for example, we finally move away from the absurd and highly misleading notion that “land” in Second Life is “owned”. In the past, this has given rise to all sorts of misconceptions and ranting within the official flogs.  The new ToS makes it clear that the acquisition of “virtual land” and the fees relating to the same are now effectively a licence to use LL’s server space and fees relating to the use of that space.

That said…this blatant move it liable to cause massive upsets: Linden Lab have long promoted the concept of “ownership” within Second Life – while the ToS has tended to make it clear users don’t actually “own” anything beyond IP rights to their own creations. As such, the ToS was found to be coercive during one famous case. While times have changed, one can well see the move to “licensing” land to be a causing of much potential upset in some quarters.

Similarly, the new approach is liable to cause much gnashing of teeth where Linden dollars are concerned, inasmuch as any fiscal value associated with them has now been almost completely stripped away up until they are actual converted to “real” currency and withdrawn. One cannot help this a) has been done to reduce the prospect of litigation following future account terminations; and b) will vastly reduce the funds people are willing to hold in their accounts.

These implications are potentially bad enough; then things get worse. Section 7, dealing with content, is perhaps the most confusing aspect of the new ToS, in that it appears to have been written around the God-awful “Second Life as the web” paradigm many at LL seem so in love with (and which is in keeping with their shift in now regarding themselves as a service provider along the lines of an ISP). As such, licences, rights, etc., are all talked about in terms of “uploading”, “publishing”, “submitting” and so forth, vis: You retain any and all Intellectual Property Rights you already hold under   applicable law in Content you upload, publish, and submit to or through the Servers, Websites, and other areas of the Service, subject to the rights,   licenses, and other terms of this Agreement, including any underlying rights   of other users or Linden Lab in Content that you may use or modify [my emphasis].

But what of content created in-world? The ToS implies that content created in-world (prim linksets, LSL scripts written in-world, etc.), fall outside of this section and thus are by default the property of Linden Lab. Even Section 7.6, relating to IP rights limit’s the user’s ownership of such rights to content you upload, publish or submit to the Service.

If this is the case, then it is worrying on several levels – both for users and potentially for Linden Lab.

Elsewhere, the new ToS introduces the TPV Policy in what is again bound to cause outrage. As I’ve mentioned previously (and more than once), the TPV is flawed in that the TPV confuses the use of third-party Viewers with the development of said Viewers. This has already given rise (rightly or wrongly) to outpourings of scorn and hurt from third-party Viewer developers  – and it now looks set to do the same with users of such Viewers. One can – to a point – see why the two have been mixed: TPV code is open-source and thus moddable – not only by the original developers, but by users why are so inclined.

Even so, it would have been far better had LL restricted the TPV policy itself to developers and the development of TPVs, and included a short, unambiguous section on users’ responsibilities in the use of TPVs within the body of the ToS. This would have scored two quick wins: i) it would have enabled LL to simply specify what users cannot do to existing TPVs without getting confusingly embroiled in deeper development issues; ii) it would enable developers to more clearly state their own EULA to ensure they both remain within the confines of the TPV Policy and limit their liabilities in the face of those determined to hack their code for malicious ends.

It’s also hard to fathom the policy around snapshots and machinima. Promoted by LL as an “aid” to such work, the entire policy looks set to achieve exactly the reverse. People are already trigger-happy with the AR option when it comes to “copybotting”; one dreads to thing what will happen when folks start innocently taking snapshots of one another as they hope around places that interest them and others start getting objectionable…..

The biggest problem with the new ToS is that while it is cohesive pretty much of itself, some contradictions are apparent – most notably between the ToS and the supporting policies. The ToS also absolves Linden Lab of virtually any and all liabilities – even in the case of them either turning off SL with no warning, or simply being so grossly negligent that they completely break the platform; at the same time, it enforces liabilities upon user even after they cease using the service. Hard to see either of these surviving a court case intact.

One can no longer doubt that the times are a-changin’ – but the question really remains as to how much this new ToS will really affect the overall use of SL. On the one hand, I can see elements giving problems, as mentioned above vis photos / machinima and possibly the use of third-party Viewers (possibly because the majority of “new” users will be driven down the Viewer 2.0 route), but I honestly suspect that – as with past upheavals in SL, life will go on more-or-less with an air of “business as usual” as the dust surrounding the new ToS settles. At least until the first lawsuit pops up.

Unless, of course, LL themselves see fit to rock the boat to the point of capsizing it themselves.