cc image courtesy flickr.com/photos/soaptrail
I started writing another comment in the thread of my last post The Second Life Tipping Point, but it grew to a length that better served as a post. Then, as Monday morning fate would have it, I deleted the entire thing in a moment of compounded user error and erroneous system settings.
I thought I'd wait until the weekend and start reconstructing from my notes and memory until today when by some creepy coincidence, a court case came to my attention (Evans et al v. Linden Research and Phlip Rosedale which I will cover at the end) and now I've stopped everything to finish this post. It's sketchy and off the top of my head and from coffee stained Moleskine pages, normal cautionary warnings apply.
First and foremost, I am not a lawyer (IANAL); I am a part time virtual world resident, observer, researcher, musician and bard. Since my initial foray into this space, I have developed a deeply held conviction that virtual worlds can transform us in ways that we have not yet imagined. I believe that the "world that Philip built" while wildly idealistic, is actually achievable and arguably necessary in the next cycle of our evolution as a society.
This world vision is not a mirror world, an escape pod, or a new theme park, but rather a means by which we can overcome the shortcomings, trappings and ill fate of the systems we have constructed in the physical world that are by any measure stifling development and innovation on many levels. I for one do believe that there is a means by which a virtual world like Second Life™ can improve the human condition, but only if we allow it.
That said, these are the things that are phasing Grace.
Terms of Service (ToS) Mysteries
One day, you sit down to log in to a virtual world in which you reside and you are faced with a simple decision: either you accept the terms and proceed to log in, or you don't and can't. Depending upon the circumstances, most people simply click "accept" and move along despite the unknown implications, liabilities or otherwise.
Most people pay attention to the words on the site, to public discussion that Linden Lab have, and to the blogs, etc far more than they read or understand the ToS. This is just human behavior. Don't believe me?
Recently, thousands of people transferred their immortal souls to gamestation.co.uk. The company released a new terms of service that included an "immortal soul" clause through which 88% of people clicked through (at least 7,500 individuals).
By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.
Changing the terms of service is a normal course of business, but I'm not sure that springing them on people is the best approach, particularly when there are no easily accessible ways to evaluate the scope and/or the nature of the changes and most especially when people are deriving tangible value (i.e. income) based on a previous agreement.
Duality or Schizophrenia?
As many people pointed out on the comments of my Tipping Point post, Second Life has been previously defined as a service. On one hand, there has always been a service as described in the ToS but one the other (more visible) hand in the marketing, public speeches, etc. it has been presented as a "world" where attendant property rights exist in order to support the very basis of the service - the economy.
For me the most confusing part of the evolution of the ToS has been, as Lalo Telling pointed out in comment, and as Juliet M . Moringiello outlines so eloquently in her treastise, the duality and implications of the words in the ToS versus everywhere else. Here's an excerpt from pp 45-46 of Moringiello's paper "What Virtual Worlds Can Do For Property Law" (emphasis mine):
"As noted above, the term “license” in itself does not communicate any property interest, as a license is a contract. Earlier in this article, I described scripted and non-scripted virtual worlds. In both types of these worlds, the virtual world operators describe the rights they convey as license rights. A comparison of the Second Life and World of Warcraft licenses, however, show that the rights that licensors attempt to convey are very different. To some, the rights conveyed by Blizzard and Linden might appear to be similar. After all, they both convey some kind of intangible asset in a virtual world. Blizzard, however intends that World of Warcraft members use in-world items for one purpose, the progression of a scripted game. Linden intends that its members will develop a vibrant world in which business should thrive. 
232 The Second Life website tells the world that “one of the most exciting aspects of Second Life is its vibrant marketplace for virtual goods and services.” http://secondlife.com/whatis/marketplace.php (last visited March 21, 2009).
Joshua Fairfield also echoed this concern or as he describes it schizophrenia in the most recent Terms of Service in his Metanomics discussion (emphasis mine):
"What's interesting is that other parts of the change, especially those that talk about Machinima and snapshots, those are actually a lot more like what we experience in everyday life. You can't take a video camera and stick it up to somebody's window. Well, why not? Because you're on their land, right? You're in a real place where you're not supposed to be. And so in that way I find the new changes are almost schizophrenic.
In the one direction, they want to say, "Okay, all of this is just intellectual property." In the other sense, they want to say, "Well, actually we're taking this very real. We're taking people's privacy considerations very seriously. We're taking their land ownership very seriously."
And so I think they need to make a decision about which way they want to go. Is this just a special show in a box, or this a real place where people really care about stuff?"
I think that is the core issue, not whether it's one way or the other, but that it's both, and it's both in a way that is arguably unbalanced and one-sided - also a contract validity concern and to me, a concern about the viability of a "virtual world" for anything other than pure entertainment.
Perhaps it is actually be beyond our (human) capability at this time to carve out a synthetic space owned by game gods that can be transformative. Kevin Deenihan argues in his essay "Leave Those Orcs Alone: Property Rights in Virtual Worlds" that worlds are in fact just forms of entertainment and should not be burdened with legalities as he writes:
"Players and their characters earn virtual property to socialize, for fun, or for status, not for protection or investment. Shoehorning in a legal system that protects investment and ignores the value of fun and communality would do terrible violence to these societies. Far better utility results from allowing users and developers to continue elaborating on their quasi-legal systems in peace."
So for Kevin (and possibly many others), we should be embracing the 3D "playing house with paper dolls" service like the one I outlined in Linden Lab Leaping the Chasm.
That's a virtual playground and not my vision for virtual worlds. That's not what I signed up for when I clicked "accept".
But then ... someone called a Lawyer
The posting discovered today on Courthouse News Service is entitled "Players Want Real Money From Virtual World" and by the account, it appears that there is now a class action suit filed by Jason A. Archinaco of Pribanic, Pribanic & Archinaco in the matter of "Carl Evans, Donald Spencer, Valerie Spencer, Cindy Carter, individuals, on Behalf of themselves and for the Benefit of all with the Common or General Interests, Any Persons Injured, and All Others Similarly Situated v. Linden Research, Inc., and Philip Rosedale", dated April 15, 2010 in the Eastern District of Pennsylvania U.S. Federal District Court.
The plaintiffs are seeking declaratory and injunctive relief, compensatory and punitive damages on claims of fraud, conversion, intentional interference with contractual relations, unjust enrichment, wrongful expulsion, and violations of California's Consumer Legal Remedies Act, False Advertising Law and Unfair Competition Law. And in case you were wondering, Jason A. Archinaco does appear to be a lawyer, and has published a virtual law treatise entitled "Virtual Worlds, Real Damages: The Odd Case of American Hero, the Greatest Horse that May Have Lived"; that is left an exercise for the reader.
Oddly enough, the filing lifts many of Morningiello's and Fairfield's arguments quoted above as well as case studies, though not as eloquently stated. In summary the plaintiffs alledge that they were "duped" into buying land by false promises made by Rosedale and others. From the submission:
The representations of ownership were a profitable lie designed to induce consumers to purchase land that they truly do not own under the false premise of ownership.
The Plaintiffs allege that they their accounts were unlawfully frozen and terminated, their virtual goods and land taken and then resold without compensation.
Incidentally, I found it curious that much of the background hinges on the so called "liquidity event" (open source of the client) and the recent Terms Of Service changes, but the Plaintiffs were relieved of their accounts and assets in March 2008, and two in April-May 2006. (Note: Bragg v. Linden was filed in 2006 and settled in 2007)
I don't know how this case will play out. While I understand and appreciate the significance, I find myself wary of the consequences and sympathetic with the Lab given the stated circumstances. I also have my own personal "gut feelings" about this filing which I will keep to myself.
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