Linden Lab alters stance: will ban
by Tateru Nino 
Apr 18th 2008 at 5:45PM
Filed under: News items, Second Life, Legal, Virtual worlds
As the Second Life blogger's strike comes to an end, Linden Lab has clarified the clarification to their new trademarks policy. This clarification is a good one. It is quite clear and well set out, and hits all the high points in a clear and deliberate fashion.
Despite any prior assurances to the contrary, yes, Linden Lab will apply the Terms of Service (section 4.4) to external violations of the brand center guidelines to ban accounts as a last resort, though it does make allowances for basics such as nominative use. This extends the Second Life terms of service to activities outside the virtual world for the first time, and for anyone who has logged in to Second Life since March 24.
Other high points in the document lay out that 'disparaging' use of the inSL brand mark is solely at Linden Lab's discretion; that SL is Linden Lab's mark exclusively for any "uses for or related to virtual world goods or services."
Bloggers and writers need not update usages published during past, more permissive rules, but must comply henceforth, or face the usual round of legal actions and possible account sanctions.
In this, Linden Lab has quashed one of the most prominent complaints about their new terms. That the Terms of Service said one thing, and Linden Lab said another. That has now been corrected, and Linden Lab's stated position is directly aligned with the Terms of Service.
That's not to say that you couldn't make a case in court for estoppel -- Linden Lab's changes will cost some people a pretty penny if Linden Lab won't provide written permission for them to continue. That's the sort of tort that estoppel is designed to deal with.
We await the reactions from the community of bloggers and businesses surrounding Second Life, with considerable interest.
Reader Comments (Page 1 of 1)
Jay said on 10:09PM 4-18-2008
It is my understanding of the nominative use the labs permits with TOS requires the first occurrence of the product name (You used it as the third and fourth words) have the ® symbol, thereafter you are free to use those two words free of such encumbrances.
The only exception to this is if you include the "The Second Life® World" in your byline and your blog is substantially or in whole dedicated to Second Life®
I believe you are breaking the TOS Tateru, be careful you are not banned!
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Tateru Nino said on 2:55AM 4-19-2008
Actually, Nominative Use has no such requirement that we're aware of -- just as you don't see the first use of a trademark in a newspaper specially marked.
That aside, our own usages conform to the style guidelines passed down from management and legal, and we're expected to stick to them until we're told to do differently. In that we're rather fortunate ... it is simply not our problem for the moment.
Our sinister army of zombie lawyers will tell us what to do if and when they decide something different needs to be done.
Prokofy Neva said on 1:27AM 4-19-2008
No, this strike thing was awful, see? Because it pushed LL into making a *worse* and more narrow and destructive interpretation than we had before. Thanks a lot! Before this nonsense, we had a badly written blog that wasn't a ruling or pre-ruling -- yet. Just a ham-handed attempt at overreach on to third-party sites, and overreach beyond what trademark law in fact demands or can enforce legitimately. When you get a thing like that, your best counsel is: do nothing. Wait. Wait to see if they come after you. Don't go asking for trouble in advance by urging them to make interpretations.
Bloggers and journalists don't write "IBM (TM)" at the first appearance of a story about IBM, that would be absurd. Blogs that regularly write about World of Warcraft don't dot their site with TMs. Please. This is insane. It should never have been cause for alarm, no one should have ever started doing this, it's not even parody but idiocy. Now they are stuck with an actual ruling that mandates blogs using SL in the name in particular to have to put these disclaimers beyond what the normal fankit sort of usage is everywhere.
Furthermore, the disparagement clause is now understood very overbroadly. If at one point it was disparagement in conjunction with the use of the INSL or SL THIS THAT marks, narrowly understood when referring to the product as a product, now it's understood to mean "anything disparaging about anything to do with the Second Life sphere all over as anyone understands it and as LL wishes to interpret it".
What these bloggers should have done was taken their time to build up a solidarity movement with bright red lines about what they would not do, bolstered by very good legal advance on First Amendment issues. They would have very good foundations in the First Amendment when operating on third-party sites. They'd strengthen their case by not refusing to honour the SL trademarks, but by refusing not to cave to overreach, or beg for interpretations of exceptions that involve in fact bolstering that overreach.
You see what happens when you strike over something this ridiculous? You just end up undermining the principles of freedom for everyone, and only land yourself worst conditions. Struggles against arbitrariness and abusiveness are just, and are a good thing, but they have to have some common sense to them, some sense of independence and spine. I've been very dismayed to see the strikers begging for permission to put on a demonstration in front of the Governor's Mansion, or begging for pre-exoneration from banning if they have a trademark dispute. This puts the entire civil society of SL, such as it is, in a terribly weak place.
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Jay said on 2:59AM 4-19-2008
What happens when your avatar gets banned though Tateru?
And why does this site not let me reply to your post?
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Tateru Nino said on 4:53AM 4-19-2008
The reply function is a bit funky. You can't reply to replies.
(We've got some devs chained in the cellar working on this and a few other glitches).
As for what happens then? Well, we'll have to wait and see. Linden Lab is the first in the virtual worlds/MMO industry to object (you may have noticed quite a few other trademarks around the site -- indeed many of them are quite encouraging of the use, modification and remixing, even when we're not being very nice). So this is a situation we don't really have much of a precedent for.
Still it isn't for me to decide. This is between sets of company lawyers, I should think.
Ciaran Laval said on 8:17AM 4-19-2008
If the likes of Information Week and Scoble were bound to such trademark restrictions (and they exist for other companies, not just Linden Lab) then we'd have examples galore of how this applied, but they simply don't abide by these rules. The mainstream press, the professional writers, are not bound by conditions such as this and this is where the whole process has been made extremely messy.
This is intended to stop people infringing on Linden Lab's trademarks in relation to business, it's to stop other virtual worlds using Second Life, it's to stop business pretending to be Linden Lab and trading off their name. If you're selling products inworld or outside of it via websites that offer such services then you should be following these trademark guidelines to the letter.
However if you're simply writing about your adventures inworld, questioning policy, praising policy, then you shouldn't have this big stick hanging over you.
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kanomi said on 3:20AM 4-21-2008
This whole thing was a tempest in a teapot. Those guidelines are standard issue corporate fare that you issue to your BUSINESS PARTNERS. That clarity should have been there at the beginning. No game company in their right mind will care if some fan site is not putting a (TM) after their effing name, least of all the Lindens.
Now if you had a domain name, that is another story, and you might be quite irate. Those people should've been compensated somehow.
You can never please everybody, but with a little forethought and sugar you can keep most people on board, instead of cause all this fear and doubt.
Silly hippies, PR is for real.
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