ToS changes legal panel transcript (2): Tim Faith

Agenda Faromet Looking at the law

This is a transcript of Tim Faith’s initial comments and views given at the Terms of Service legal panel discussion which took place on Saturday October 19th, to discuss changes made to the Linden Lab Terms of Service governing their products and services in August 2013.

If you have come to this page first, please read the introductory notes for details on the panel and its purpose. Links at the foot of this page provide access to the other sections of this transcript.

audience-3

Hi everybody, thanks for spending Saturday morning or afternoon with us to talk a little bit about this topic . so I’m the president-elect of the SL Bar Association, and there was a question earlier from one of the audience members asking to explain what the SL Bar Association is about, so I’ll just do that real quick.

00:24: We a group of attorneys and other people who are either in the legal community as paralegals or that work in the legal community or just are simply interested in the legal world. We have our own sim and we meet periodically to talk with each other and to put on these kind of presentations to the public about various legal topics and I guess, I don’t know if we’ll be taking an advocacy role, it sounds like others are already working in the lead on that. I tend to agree with Agenda. We’re all in Second Life, and I think that Second Life may have over-reached a little bit with what they’re doing with this terms of service. So maybe we all ought to give them a hard time about that.

Tim Faith (inara Pey)
Tim Faith (inara Pey)

01:22: That’s sort-of what SL Bar Association’s about, if you’re interested in learning more about it, you’re welcome to instant message me or get in contact with Agenda or any of the other folks who are a member, several of whom are in the room here of the Bar Association.

01:42: So  I’m an attorney, I work in Maryland in private practice, I teach part-time. One of the teaching positions I have part-time is at the Maryland Institute College of Art. My undergraduate degree is in painting, I graduated from MICA back in the nineties, so like many of you I’m an artist even thought I don’t practice art any more, I’m a practicing attorney, but I guess changing the terms of service and just the overall impact of technology on our rights is something that I’m personally interested in, and in trying to help people sort out.

02:22 I teach intellectual property at the Maryland Institute to artists, many of whom are trying to start art businesses, which is not unlike what some of you are doing here in Second Life. All the students I had last semester are real-life art businesses, but in a lot of ways it’s really no different than if you’re in here trying to make off of your creative output.

02:53: I think copyright might be the most important intellectual property right that artists have, even though there are trade secrets and trademarks and patents and other sorts of rights, but I think copyright is front-and-centre. And of course that’s really what the big change is here with the terms of service from Linden Lab; it has primarily to do with your copyright rights.

03:20: So as Agenda said, there are laws that govern you rights as a copyright creator. One of the things we didn’t clarify, of course US law is what I practice and so I can talk about our federal copyright acts, however the world is much larger than just the United States, and there actually other countries that have their own copyright laws, and in addition to that there are international treaties that govern intellectual property. And one of the treasons the US copyright law changed is actually because in the nineties we  agreed to an international treaty which required the United States to recognise moral rights, which is now found in Section 106a of the US Copyright Act.

04:14: Moral rights, in addition to the exclusive rights that Agenda talked about earlier, have to do with an artist’s rights of attribution and to prevent mutilation of works. and those are not really economic rights. Section 2.3 writes of the right to copy, the right to make derivative works, the rights to perform – that’s mostly about economics. But as an artist, if I make a piece of art and I put it in a public place and someone comes along, maybe who’s the building owner, let’s say, and takes down my work or takes down half of it, or removes the plaque which says I’m the author  or the artist of it. What prevents that is Section 106a under the US Copyright Act, and there are moral rights provisions in most other countries that have copyright acts that protects works in their countries.

05:18: What’s interesting, and we didn’t focus on this earlier, but I believe moral rights under the new terms of service are actually waived, which I think is curious. I’m not really sure why they did that; for their efficiency, perhaps, that may have made sense and in the United States we don’t focus as much on moral rights because they are relatively recent under federal law. But there are kind-of two sides to that.

05:52: If I had a painting that was hanging up in a public space, I wouldn’t want the owner of that space to be able to alter my painting to, say, maybe fit it in a smaller room, without my permission. I also wouldn’t want my name to be associated, necessarily, with a painting I didn’t make, especially if it was a crappy painting, which is the other side of moral rights, that you do have the right to remove an attribution to a work that isn’t yours or that you would disclaim as not being yours because of the alteration to it.

06:33: So I just wanted to explain what that was, and I think it’s curious that Linden Lab’s terms of service directly address that; I’m not really sure that other terms of service do, at least from what Agenda’s presented, there’s not really much mentioned of that; it’s mostly the exclusive rights under Section 106 that most people are concerned about licensing.

07:00: Now, even though you have exclusive rights, so the technical definition is you have to create an original that’s fixed in a tangible medium that others can perceive. 1976 was when the current US copyright law was written, and that’s the definition of what a “work” is, which can be protected and have these exclusive rights.

Tim Faith
Tim Faith

07:26: I guess one of the other things I wanted to point out is that the US law was written in 1976, well before there was the Internet, well before there was Second Life, well before there was Facebook, Google; a lot of the things we take for granted today just didn’t exist then. So we’re working under an older system that really didn’t recognise a lot of system stuff or Internet technology stuff that exists today. And that is some of the square peg / round hole problems that we face in the twenty-first century trying to make this stuff work, in what I think really is a new world, when you’re dealing with virtual worlds like Linden Lab’s. I think it’s sometimes difficult to find a fair way to apply your exclusive rights in a world like this, and I think part of the controversy here is created by that struggle to recognise your rights but still have a functioning Second Life viewer and world to be in.

08:39: So “original work” means that you created it, it’s a pretty low bar in US copyright law at least, for it to be original. A direct copy of someone else’s work, of course, is usually not protectable. But an example I give to a lot of my students is a lot of people go to Washington DC and they visit the monuments that are there in DC and lots and lots and lots of people take photographs of those monuments of various sorts. And you would say, “Well, there’s probably a billion photographs of the Jefferson Memorial or the Lincoln Memorial, so how could anybody’s photograph have any exclusive rights in it?” And I guess why even my humble photograph of the Jefferson Memorial has some exclusive right to it is that it was my day that I took it, I set the scene, it was my decision about when to take the photograph, it was my decision about the angle, what was going to be in it, what was going to be out of it. All those are creative decisions that I made in order to make my photograph.

09:59: So that would still have some copyright protection. It doesn’t exclude anyone else from taking a photograph of the Jefferson Memorial; it would probably only limit them from copying my particular photograph that I took that day. But if they went out there on their own and took their own photograph, they have the right to do that; I can’t prevent them from doing that with mine. It’s the creativity that went into making that photograph is what creates these exclusive rights in it; and it doesn’t have to be a lot in order to qualify under the US Copyright Act.

10:41 And I think that in of itself creates some challenges when you come into a virtual world like this where there’s lots of creativity and most of it is owned by the author, that is the person that originally created it. It creates a lot of tension, I think, in order to accommodate those rights among many, many people that work here or live here in Second Life.

11:11: Now I think Agenda touched on this. In order to use this system – Second Life is a computer program. You connect to it through a viewer and everything that is in Second Life really is protected by someone’s copyright in the sense that someone had to come and create the textures for this room, someone had to assemble them together; there are virtual three-dimensional objects in this room, there are chairs that you can sit in, there are scripts that control how your avatar works, there are scripts that control your position within a seat or room. There’s a lot of intellectual property that’s user-contributed in order for this world to exist.

audience-2

11:58: In addition, Linden Lab itself had to write a whole lot of code in order to have the world itself to exist in the first place. So there’s a lot of copyright protected stuff that you really don’t see, but you take for granted that it exists. And of course there are places you can got that Linden Lab has itself created, and they are, as the creator, most likely the copyright owner of that.

12:25: So, unlike the real world, where you walk through the mall or you walk down the street in your home town where you live, there’s not as much stuff that you interact with that is copyrighted. Buildings exist in the real world, streets exist, the sun set; all the things you perceive in the real world, there’s a minority of that that is an original creation by an individual in whom there would be exclusive rights that would prevent you from copying it.

13:06: But I think what’s different about this virtual world and others that have been created, is that everything around you is potentially the work of an exclusive author. And it changes how you interact in this world as someone who is trying to deal with those rights or be your own creator of works here; you have a different relationship with everyone else; I think a lot more complicated of a relationship.

13:36: But I think the other side of it is, I think Facebook is a good analogy, there is a lot of things we share on Facebook that I don’t think people would normally share anywhere else. We have a lower expectation of privacy about the stuff that we share on Facebook, I think, than what we might have had ten, twenty or thirty years ago. When you walk through Second Life, you may come here with the expectations that  you have in real life, with the people you interact with, and you just don’t have as much interact with copyright law as a consequence of your real life interactions. But it’s different in Second Life; copyright is right front and centre in terms of every interaction, in theory, that you have here potentially involves some intellectual property issue.

14:36: Now if exclusive rights were absolute and you couldn’t limit them in any way, then Second Life could not exist. And I think that’s an important point to make; and I think that in real life, if your rights were absolute, and you had absolute control forever over them, that you would probably defeat some of the value of those rights. So at least under US law there are certain limitations built-in, the biggest one being fair use, which permits you without a licence to potential use the works of others if you meet the criteria of fair use. And there is a balancing test for those of you who are academics, fair use in part covers criticism and certain kinds of academic use of other people’s work without a licence. So that exists out there as a limitation on exclusive rights.

15:44 And of course you rights don’t last forever. Even in US law today, it’s the lifetime of the author plus seventy years thereafter, which is a relatively long time, granted, but it’s not forever. Eventually your works end-up in the public domain, and then there is no requirement for a licence to use or exploit those works.

16:05: So what Agenda has said is, most licenses, when  you get on an IT system like Linden Lab’s for Second Life, it’s usually a two-way licence. They have to give you a licence to be able to use their copyrighted works in order to access the viewer. And then on the other side, if we’re going to contribute  original content, there has to be some licence that we give to Linden Lab in order for them to be able to display your work for other people to see it in the world – so that’s sort-of a minimum thing. And I think what Agenda very ably covered is examples of some of the other system out there where there are reasonable two-way licences, where the creative people that use that system give certain licenses to use their works in certain ways, and in exchange you’re able to use Facebook or one of the other ones’ intellectual property in order for you to access the system and do stuff in it.

17:20: I think that what’s maybe very different [is] Facebook may be used with a limited purpose with business – for example I have a Facebook fan page  that you can interact with my law firm through Facebook, but I don’t do business on Facebook; it’s not like I see clients on Facebook or I don’t practice law on Facebook. It’s strictly, I think, a very limited marketing that I do there. Whereas in Second Life, you’re operating a business here, you’re selling stuff, virtual stuff, to other users for Linden Dollars which can be translated into real dollars. And you guys have to be able to make a profit; in order to survive, you’ve got to be able to market your goods effectively. And you know, in many ways, a lot of us pay to be here; if you’re a land owner, if you buy your own sim it’s a few hundred dollars a month that you’re paying, or you have to pay a landlord who is the actual owner of the sim or the region in order for you to have a market here.

18:45: So I think in some ways what Facebook is concerned about is less of a business concern, and so their licensing regimen is a little bit different.  What I think is curious is that previously, I remember looking at [the] terms of service for Second Life several years ago and thought, “This is a very creator-friendly terms of service”. And I’m with you, shocked at what I think is a pretty substantial change in the terms of service today. I think it’s unfortunate, that it’s going to have a very negative impact on many of you that are trying to make a go at business here in Second Life.

19:38: Now [to] some of the other basic things I wanted to just talk about. First off, my experience in teaching students that are artists is often there is a lot of misunderstanding about your rights. So I want to make sure that I say this to everyone. You really should know what your rights are. It’s very important that you understand that concept, in terms of what your copyright rights really are; particularly if you’re in business. Because the contracts that you sign, whether they are electronic or whether they’re on a piece of paper, often you are going to be held to the language of those contracts as a business owner. And you are presumed by signing or using a system, that you understand what the consequences are to your rights or what your rights are, what you might be giving away.

20:39: So particularly to artists who are not  formally trained in the law, typically, I can say in Maryland that I know of only one other graduate of the Maryland Institute who also happens to be an attorney, so it’s pretty unusual that you’d have an artist that’s also a lawyer. But you’re still expected in the business world to really know what your rights are and act accordingly.

21:06: And the other part of it is that if you don’t pay attention to the impact on your rights in a system, whether it is Facebook, Second Life or another, you may very well be giving away the farm without acknowledging or realising it. And you’re going to have an uphill battle in a court system or somewhere else with someone when you say, “Well, I didn’t read the terms of service, I just kept on using the system,” or, “I really didn’t read that contract, I just signed it because I just thought it was a formality.”  So that’s important that you have that understanding of what you’re getting yourself into.

21:50: One of the problems with Second Life is, I think for business owners here is lawyers still cost real money in the real world; it’s not like there’s a version of the law that’s practiced here in Second Life that’s 1/250th the cost of what it is in real life. Even though in Lindens when you do business here in Lindens, 250 Lindens make one US dollar. So you operate at a discount in this world, essentially, but it’s rare that an attorney will work for a dollar an hour in real life. It just doesn’t typically happen. So it’s an obstacle, I think, to getting legal advice for you folks.

22:39: But on the other hand, the legal system isn’t going to coddle you. If you do not know your rights, and you’re doing business here,  and you give away the farm, you’re not going to get a lot of help from the court system in the real world to solve that problem.

22:59: I think that at this point, I would just simply agree with Agenda in terms of the specific problems that we see within Linden Lab’s terms of service. I do think they are an important change, I think they are not as friendly as they used to be to creative folks who are working in here. I think it is a fair assessment that we need to act to try to convince Linden Lab to change the terms of service and that it’s not unreasonable for us to make those requests to Linden Lab.

23:39: I don’t know if there will be enough people that will stop using Linden’s system or go to an alternate system to really change their mind, I don’t know But at the same time, I think it’s important that you stand up for yourselves. I think maybe that’s where I would leave my part of this talk.

24:01: You know, artists often, I remember I went to a gallery opening and I ran into an old professor of mine from undergrad and mentioned that I was an attorney and I was talking to her about life as an artist. And she said, “You know, gallery owners in the real world are often the people who write the contracts for the sale of works of art, and good luck negotiating terms with them!” It’s sort-of a take it or leave it. If you want the gallery to show your work, you have to deal with their contract. It’s rare, except for famous artists that have a national or international following, it’s difficult to have an equal bargain with large galleries, especially as an artist just starting out; you often get what you get.

24:53: But I say to everyone, it’s a two-way street. There’s only one Linden Lab, but there’s many of us that are creative people. Both are needed in order for Second Life to be popular and to be successful. There has to be creativity in this world and those rights have to be respected, not just by other people in the world but also by Linden [Lab] itself.

25:20: I would certainly encourage people, and I do encourage artists, to stick up for yourselves, and if you see something that doesn’t make sense to you, or that substantially infringes on what you need in order to be a creative person here, then you have a right to be heard. I don’t mean that that will change anything; but you need to stand up for yourself.  You are the only advocate for yourself in this interaction, so I think that’s important to say.

25:51: So I’ll leave it at that. Agenda, I don’t know if you have anything else you want to add at this point.

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