Creative Common Sense

You have, in front of your eyes right now, Intellectual Property. Some anonymous page designer put together the CSS to generate the layout of this blog. Google, doing business as Blogspot (or Blogger, take your pick) offers it and others — for free — for people like me to muck it up with words and pictures. That makes this webpage, in a way, a derivative work.

Most of the words in this blog are authored by me. They are my Intellectual Property — though, to be honest, the degree of intellect they exhibit is not mine to determine, but my readers’. The words in this blog which are not mine are quoted from others’ Intellectual Property, and attributed in what has become the default method for non-scholarly Web publication: a hyperlink to the original page published by that author (or that author’s employers). The portions of my words which are based on their words — my interpretations, comments, extrapolations, etc. — are also derivative works.

I am permitted to quote others by a basic principle of what you might call “common law”, and by a specific license granted by those other authors. The first instance is known as Fair Use; the second is the Creative Commons Attribution-Noncommercial-ShareAlike license which also governs this blog, as you can see by scrolling to the bottom. I am enabled to do this easily by a simple feature of the technology through which their words, and mine, are published: copy/paste.

In short, I am a Content Creator. I join the millions of other Content Creators alive and writing now, and the tens of millions who came before, and the uncounted numbers who will come after. Like most of them, I will never receive a penny in compensation for the hours I spend in this effort. Like most of them, I won’t care. The work is done for its own sake, for the pride of accomplishment, for the satisfaction of having said something I felt was important at the time in a manner comprehensible (if not also pleasing) to my readers — if I have any readers; yet that, too, is less important than having said what I wanted to say — and yes, partially in hope that someone will say, even if only to themselves, “Y’know, that Lalo guy is pretty good at this…”

“Like most of them…” Yes, in every age there are those who have managed to receive compensation for their creative effort, and there are those others who, seeing this, think “Hey, I can do that too!” Adam Smith’s Invisible Hand of market forces determines who succeeds and who doesn’t — which is another way of saying that talent is no guarantee either way (for contemporary example: the Left Behind series). And yes, in every age you will find a tiny but stridently vocal minority of content creators whose expectation — or delusion — of success has not been met to their satisfaction and who blame their failure on any and every thing except their own bad choices.

I am also a photographer — that is: using another simple tool of the technology which brings the content of virtual worlds to my computer screen, I capture images of the work of other Content Creators. Why? For the same collection of reasons that people have expressed about taking snapshots since Kodak invented the Brownie: because the work is aesthetically pleasing; because the work is historically significant; because I want in future times to see it again and recall that I was there… et cetera. And, in the case of virtuality (though this might also be said of the organic world), by “work” and “creative content” I also mean the effort of individuals to make their avatars unique among the tens of thousands concurrently logged in.

Note, in passing, that those avatars by and large create their unique appearance through the use of others’ creations — more “derivative works”, as it were.

I “publish” a great deal of the images I capture — that is, I post them online. A few find their way to the pages of this blog; most, by far, wind up in my collections at Picasa (another Google product, incidentally). Why? Partially, again, because I hope someone will say, even if only to themselves, “Y’know, that Lalo guy is pretty good at this…”, but mostly because I’m saying “Look! Isn’t this cool?”

Now, we come to Second Life, and their new policy on snapshots and machinima, which in retrospect I believe they should have called the Image Capture Policy. I thought I was done addressing it in my last entry… silly me. I thought that a simple common-sense reading would confirm that what has always been understood as the liberty to capture screen images in and of the world, and publish them elsewhere, had now been codified. Well, I was wrong. After writing that entry, I went out into the meta-cyberspace about Second Life to see what others were saying… and I made the mistake of attempting to talk common sense to some people who, I honestly believed, were simply misreading the new policy.

Take a couple of minutes to read this exchange of comments between Cube Inada and I in New World Notes. I hope I sound to you like the voice of Common Sense, but what concerns me is Mr. Inada sounding (to me) like the voice of Fear, and my suspicion that he may not be alone in his opinion. When I boil down his comments, what remains, once again, is “it’s all about the money.”

He uses the phrases (bereft of their capital letters) “devalued”, “images have commercial value”, “revalue or resell without the Copryright owners permission and or renumeration.” [sic] Obviously, he’s not talking about the intrinsic or aesthetic value of a creation, which is a personal judgment of each mind that beholds it. Neither is he talking about the extrinsic value of a creation, such as its usefulness to the purpose for which it was made. It’s clear that his consideration here is its monetary value, which at first analysis is an arbitrary sale price a creator might put on an item, but finally is an expectation of future income, which resides solely in the mind of the content creator. As best as I can tell (and I sincerely hope he will tell me if I am incorrect), he is saying two things: [1] The mere fact that someone’s created content appears in a captured screen image will negatively influence — “devalue” — the sale of said content… presuming said content is for sale in the first place; [2] The primary purpose of image capture — snapshots and machinima — is for the photographer or videographer to sell the results, and that therefore the original creator of the items in the image should be compensated for what is, essentially, an accident of placement in the image.

In the first case, I offer a counter-example: my blog entry about soror Nishi’s sculpture exhibit, and the further images I captured on the day of its opening and published in my online collections (with emphasis that they were not merely the background of those images, but the subject). Many of Ms. Nishi’s items are for sale, and thus have a monetary value in addition to their striking aesthetic value. The images I captured cannot be used to duplicate the textures she applied to her work in order for anyone else to counterfeit them, so there is no question of “lost sales” due to cheap knock-offs. How, I ask you in my common-sense way, have they been devalued? On the contrary, I may well have increased Ms. Nishi’s subsequent sales by helping to publicize, in whatever small way, both their beauty and their availability. (I happen to have also been thanked privately by her for my presentation, and I gave her copies for her own use, one or two of which she then published in her own blog.)

In the second case, my common-sense counterexample is posed by these questions: Do you have to pay to read blogs? Do you have to pay to look at images collected at websites like Picasa, Flickr or Koinup? Do you have to pay to watch machinima posted on YouTube? Quite simply: there is no commercial market of the kind Mr. Inada fears he is being cut out of. I will grant exceptions, of course: Life 2.0, which I must assume is intended for commercial release once it finishes the festival circuit.

However, consider this: Up until now, I could not understand why the new “permission denied” clauses of the policy were written one way for snapshots and the opposite way for machinima. Without re-quoting the policy, the difference is: to deny permission for snapshots (or to force the photographer to ask first), you must say so in the Land Covenant; to deny permission for machinima, you need not say anything at all, and the videographer must ask first. Looked at another way: regarding images for which there is no potential commercial market, permission is the default condition; regarding images for which there someday might be a potential commercial market, permission must be sought.

Makes sense to me.

One more thing: Mr. Inada is concerned that permission can only be granted or denied by the owner of the land the content sits on (or floats above, or whatever), and not by the original creator… and once again, his concern seems to be about losing a potential revenue source. Gods forbid, one of his buildings (which are pretty damn cool, after all) should appear in the background of a machinima scene, or one of my photos, without proper compensation!

Mr. Inada, and any who agree with him, would place restrictions on image capture in Second Life (and other virtual worlds?) far in excess of those which exist in the real world. To create a capacity they do not have now to squeeze the last possible perceived dime from their Intellectual Property copyright, they would gladly stifle two other entire — and equally valid — branches of virtual art under a ridiculous tangle of red tape in the form of cascading permissions. They may call it “protection”; in my dictionary, it shows up as greed.

Tell you what, Cube: If I discover you’re the creator of anything that finds its way into a snapshot I take after 30 April 2010 (when the policy we all already agreed to goes into effect), I’ll send you L$ 25. That’s about a dime in US currency, and is one more dime than I’ll ever see from my work.

~

Oh, and the extra notice (and possible sales) you get as a result of my linking to your profile and website? That’s on the house.

~

All Foole’s: A Day Early

Let the tsuris begin!


Yesterday, 31 March 2010, everyone who logged into Second Life were forced to agree with a revised Terms of Service document before they were allowed to connect to the world — in spite of the fact that the revisions do not take effect until 30 April!

I have learned much, through my immersion in meta-matters about SL in the last few months, and I had also had a preview of some of these particular revisions by way of the discussion at SLUniverse. Thus, I took the time to read the new ToS, and to attempt to parse what policies had actually changed.

The Third-Party Viewer (TPV) policy, new to the ToS, has been widely discussed in other venues in the weeks leading up to this change. As far as I’m concerned, Tateru Nino made the definitive statement on the subject of the policy itself. I was, however, quite surprised that not only were developers required to “sign” it by checking the “I agree” box, but everyone is, whether or not they use a TPV!

I do use a TPV — Emerald — and I will continue to use it for as long as it is allowed permission to log on. I am on record already as hating LL’s Viewer Two Point Ohhhh, shit! If (and that’s a big question) the Emerald Dev’s make a version of it wherein the new User In-your-face is optional — as Chalice Yao has indicated is their plan — I will use that. Only if there is no other choice will I use LL’s viewer.

As to the rest of the POS ToS…

There’s a new Section 7 which expands and details the various Content Licenses and Intellectual Property Rights. For the most part, I am unaffected… and frankly, the overall interpretation is something I parsed out of the previous Terms: “No one but Linden Lab owns anything; we only grant each other permission to use a copy.” However, the Lab saw fit to add specific mention of image capture — still screen captures and moving video — and to expand that in a separate but binding document they call the Snapshot and Machinima Policy.

Machinima, in case you’re not familiar with the word, is a cobbling together of “machine” and “cinema” and, in its raw form, describes using the function available to record what appears on your screen as if it were a video camera. “Proper” machinima takes such raw recordings through various digital post-processing to create a work of art. I am not a machinima artist. I have serious doubts that I will ever become one. So the clauses in the new policy specific to that art form don’t affect me. BUT, I am notorious known for my addiction compulsion habit of constantly taking snapshots. I have the audacity to call what I do photography.

1. Copyright Licenses.
This is the legal permission that you can show the festival organizers or anyone else who’s interested:

As long as you comply with the terms and conditions below, both Linden Lab and the Residents of Second Life (collectively, “we”) grant you the following copyright licenses:

1. A License To Capture. You may take snapshots and capture machinima of the 3D content we created that is displayed in-world, and
2. A License To Use. You may use the resulting snapshot or machinima within or outside of Second Life in any current or future media.

“Use” means “use, reproduce, distribute, modify, prepare derivative works of, display, and perform.” For other definitions, click here.

Both the License To Capture and the License To Use (collectively, the “Licenses”) are non-exclusive and royalty-free. In addition, the License To Use is worldwide, sublicenseable, and transferable.
[emphasis in the original]

Fine, so far. What the above does, basically, is codify the general understanding we all had about SL screenshots.

2. License Conditions.

The Licenses are subject to the following conditions:
(a) Land Owner Consent for Snapshots and Machinima.

If you wish to take a snapshot or capture machinima of content on another Resident’s land, then:

1. For Snapshots, check whether the covenant for the land prohibits snapshots. If it does, then you need special permission from the land owner to take the snapshot. If it allows snapshots or doesn’t address them, then you do not need special permission from the land owner as long as you comply with any terms that may be in the covenant.
2. For Machinima [omitted, see the wiki page]

For Mainland or Linden Homes parcels where Linden Lab is the estate owner, you do not need land owner consent to take snapshots, but you do need special permission from the land owner to capture machinima. The “land owner” is not the estate owner, but the Resident identified as the land owner in the “General” tab under “About Land.” For private islands where Residents are estate owners, you must check the covenant for the private island as provided above.
[emphasis in the original]

OK, so… When you agreed (after noon PST yesterday) with the new ToS in order to log into SL, you agreed, effective 30 April, to grant license to folks like me to take snapshots of and/or on your land unless you revise the Land Covenant to specifically deny that permission. Why anyone would specifically deny permission to photograph (or record machinima) on their property is completely beyond my comprehension… nevertheless, the option is granted. [But, notice the paragraph about “land owner”? If you rent, or if you occupy group land (such as I do), you do not have the same control of permission. The covenant for that land can only be changed by the owner of record, whether individual or group. Let’s say that, for whatever reason or whim, you want to deny photographic permission on the rented or group-donated parcel you call home. You’re SOL.]

Regardless…

About a month ago, I began visually recording the regions that existed in Second Life prior to its public opening day (23 June 2003). I will not be done with the project before 30 April, when the above policy you and I already agreed to comes into effect. Part of that effort includes positioning my “camera” to capture the entire region. I then conduct a detailed site survey of obvious (and not so obvious) builds and objects in each region to determine if their age predates the public opening. So, what does the new policy mean to me?

Public Notice #1:
Parcel and region owners are hereby notified that I will be photographing their land, and objects visible thereupon, during the image capture described above of the entire region, whether or not permission is denied in the covenant for their parcel or region.

In other words, I will not go through each parcel in a sim to check for permissions before recording that overall image, nor will I “redact” the resulting image.

Public Notice #2:
If, during my detailed survey of the region, I discover that you have specifically denied photographic permission in your land covenant, you lose whatever possible publicity you might have gained by owning a historical build or item which otherwise would be depicted.

You’re also a paranoid fool — what possible harm could derive from a photo of your stuff? — but that’s not my problem… and the long-distance overall image will still appear in my collection. But, really:

The “denial clause” of the Snapshot Policy is unenforceable, and therefore meaningless.

Think about it. After 30 April, if I choose to take photos in or of a parcel, of which the owner has specifically denied that permission, I would be in technical violation of the Terms of Service, via its inclusion-by-reference of the Snapshot Policy, and subject to an Abuse Report. How is the owner of that land going to know that I have taken that snapshot? How is said owner going to know that anyone has taken a snapshot without permission, unless they go through every damn one of the thousands of blogs, websites, and photo-sharing social networks online where such images are published? How are they going to know if anyone has taken a snapshot but never published it?

One more thing…

(c) Other Intellectual Property Licenses.

It’s important to remember that the Licenses are only copyright licenses for the 3D content we created that is displayed in-world. They do not include any permission to use the trademarks of Linden Lab or Residents […]

If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk.

3. Legal Provisions.
(a) No Limitations on Fair Use or Use of Public Domain Works.

This Policy does not limit fair use or use of public domain works.

Many of the historical sites and builds I have recorded so far, and expect to discover in the future, contain Linden-generated content and display the “eye-in-hand” logo and/or the words “Second Life”.

Public Notice #3:
I hereby claim Fair Use for any and all image captures, a.k.a. “snapshots”, which include depictions of any and all trademarks, service marks, logos or distinctive signage of Linden Research, Inc., dba Linden Lab®, which were placed in the captured scene by current or former employees of Linden Lab, or made available to Residents for placement, prior to my recording thereof. I also claim fair use for any depiction of Resident-owned or -associated trademarks, service marks, logos or distinctive signage which may be in the scene when recorded.

Just sayin’…


Entitlement and the Consumerization of Second Life

– – – – – – – – – –

OK, Dusan, I get it.

People who “buy” stuff — or obtain it as a freebie — from “content creators” don’t actually own it. What we obtain instead is a license to use what amounts to a few lines of code that tells Linden Lab’s servers and/or our (and everyone else’s) viewers to accurately render that item in the manner, and to the purpose, for which it was created. I also get that in-world Copy permission does not grant permission to copy out-of-world (onto one’s hard drive) and rez it into another world. (I never didn’t get that.)

The simple fact is: no one but Linden Lab owns anything in Second Life.

3.3 Linden Lab retains ownership of the account and related data, regardless of intellectual property rights you may have in content you create or otherwise own.

You agree that even though you may retain certain copyright or other intellectual property rights with respect to Content you create while using the Service, you do not own the account you use to access the Service, nor do you own any data Linden Lab stores on Linden Lab servers (including without limitation any data representing or embodying any or all of your Content). Your intellectual property rights do not confer any rights of access to the Service or any rights to data stored by or on behalf of Linden Lab.
— Second Life Terms of Service, emphasis added

So, let’s talk about “entitlement”, shall we?

Under the current rules, and conditions enabled by at least one third-party viewer (Emerald), anyone who creates content is entitled to create a backup copy of it. Rez a prim, and you’re listed as its Creator, and the “legal” Export function creates a .xml file that describes how to render that prim in Second Life.

Question #1 — ToS 3.3 clearly states that you do not own the prim. Do you own the .xml file?

So, let’s say you use some 3D rendering software on your computer to create an object, then upload it into Second Life. By the Terms of Service quoted above, rezzing the object in Second Life automatically and irrevocably relinquishes your claim of ownership to any instances of the object in Second Life.

Question #2 — Do you own that .xml file?

The Terms of Service were written when the only virtual world that used Second Life code was Second Life. Now there’s OpenSim. Content creators are entitled to export copies of objects they created for use in Second Life, none of which they own, and import them to an OpenSim grid.

Question #3 — Who owns the object now?

Under the current rules, content creators are entitled to share content with other users of the service, with or without copy, modify and transfer permission. They are entitled to give them away for free, and they are equally entitled to demand consideration in the form of “Linden dollars”.

1.4 Second Life “currency” is a limited license right available for purchase or free distribution at Linden Lab’s discretion, and is not redeemable for monetary value from Linden Lab.

You acknowledge that the Service presently includes a component of in-world fictional currency (“Currency” or “Linden Dollars” or “L$”), which constitutes a limited license right to use a feature of our product when, as, and if allowed by Linden Lab. Linden Lab may charge fees for the right to use Linden Dollars, or may distribute Linden Dollars without charge, in its sole discretion. Regardless of terminology used,
Linden Dollars represent a limited license right governed solely under the terms of this Agreement, and are not redeemable for any sum of money or monetary value from Linden Lab at any time. You agree that Linden Lab has the absolute right to manage, regulate, control, modify and/or eliminate such Currency as it sees fit in its sole discretion, in any general or specific case, and that Linden Lab will have no liability to you based on its exercise of such right.

1.5 Second Life offers an exchange, called LindeX, for the trading of Linden Dollars, which uses the terms “buy” and “sell” to indicate the transfer of license rights to use Linden Dollars. Use and regulation of LindeX is at Linden Lab’s sole discretion.

The Service currently includes a component called “Currency Exchange” or “LindeX,” which refers to an aspect of the Service through which Linden Lab administers transactions among users for the purchase and sale of the licensed right to use Currency. Notwithstanding any other language or context to the contrary, as used in this Agreement and throughout the Service in the context of Currency transfer:
(a) the term “sell” means “to transfer for consideration to another user the licensed right to use Currency in accordance with the Terms of Service,” (b) the term “buy” means “to receive for consideration from another user the licensed right to use Currency in accordance with the Terms of Service,” (c) the terms “buyer,” “seller”, “sale” and “purchase” and similar terms have corresponding meanings to the root terms “buy” and “sell,” (d) “sell order” and similar terms mean a request from a user to Linden Lab to list Currency for sale on the Currency Exchange at a requested sale price, and (e) “buy order” and similar terms mean a request from a user for Linden Lab to match open sale listings with a requested purchase price and facilitate completion of the sale of Currency.

You agree and acknowledge that Linden Lab may deny any sell order or buy order individually or with respect to general volume or price limitations set by Linden Lab for any reason. Linden Lab may limit sellers or buyers to any group of users at any time. Linden Lab may halt, suspend, discontinue, or reverse any Currency Exchange transaction (whether proposed, pending or past) in cases of actual or suspected fraud, violations of other laws or regulations, or deliberate disruptions to or interference with the Service.
— Second Life Terms of Service, emphasis added

In short: Linden dollars are worthless. They’re like grocery store coupons, which grant the store a license to deduct a specified amount from the “manufacturer’s suggested retail price”, but have no real cash value in and of themselves. Nevertheless, you — Sir or Madame Content Creator, DJ, Host, Stripper, Escort, or other recipient of Linden dollars — are entitled to “cash out” by placing a sell order on the LindeX and receiving the going price in real-world currency for that transaction, minus the Lab’s fees. The rest of us are entitled to place a buy order on the LindeX and receive the going amount of L$ per real-world currency, minus the Lab’s fees.

Let’s look at what I bolded in ToS 1.5 again. What we instinctively believe to equal a real-world purchase, because of the use of common terms like buy, sell, creator, and owner without their common meanings — but reinforced by how content is listed in the Inventory! — is nothing of the sort. It is an exchange of licenses. “I give you license to use this amount of Linden dollars (essentially, to pass that license on to someone else), and you in exchange give me license to a copy of that code which renders in Second Life as… clothing, accessories, vehicles, houses, furniture, plants, sex toys, whatever.” Not only do you not own anything, you haven’t bought (or sold) anything.

Let’s not forget what I call the UnReal Estate market, either. No matter how large or small the “purchase” price you paid, you — Sir or Madame Land Baron — do not own the virtual land you pay tier on. You are, however, entitled to carve it up, rent or re-sell pieces of it, control who comes and goes and who may or may not rez objects on it — and you are entitled to make a profit and use that in the continual stream of license exchange that pretends to be buying and selling (including paying the monthly tier), or you can cash out.

You’re entitled, in ways that the vast majority of people in Second Life who do not make all their own clothing, attachments, and other falsely-assumed “possessions” are not. You do not own any of it, but you are entitled to gain from its distribution.

Caught on yet?

Mr. Writer got bent way out of his usual thoughtful and considerate shape by considering that what Botgirl blogged about here was a demand for Entitlement… and an unjustified one, at that. Yet he failed to mention any of the Entitlements granted to the sainted classes of Content Creators Sellers and Landlords I’ve listed above. In short:

“Life isn’t fair. Neither is Second Life. Shut up and get over it.”

The problem is: to an increasing number of Residents, Second Life is becoming increasingly less fair, and it is doing so in ways which are destroying its original uniqueness and appeal. The symptoms became clear when Mark Kingdon dropped some hype comparing SL to other “social networks”, and bellwether (some would say “stalking horse”) Hamlet Au began his occasional series on bringing SL to the mass market, and vice versa, with this editorial.

All of those Entitlements that favor the Content Sellers and Landlords Manipulators over their “customers” don’t exist out of the goodness of Linden Lab’s collective heart, and their nod-and-wink to copyright protection is merely a lure to creators who think they’re going to be safe from ripping. (By the way, have you noticed that the only people who scream for the cops over the “copybot” issue are the sellers of content?) No, those entitlements exist for the sole purpose of Linden Lab’s income.

Case in point: Linden Homes. Since that latest Entitlement program was announced, and even more so since the sample sims were opened to public inspection, dozens of bloggers and forumites have opined about them. Ironically, the very same Dusan Writer had this to say about it:

While Linden Lab is clearly focused on changing the new user experience, this is also leading to a de facto re-engineering of the way that land and other goods are purchased and will change the culture of Second Life. With more consumer-focused branding and lots of “buy” buttons everywhere, the Grid is moving towards a more packaged and more purchase-oriented environment.

What users learn when they go through the pain of buying their first parcel of land and trying to rez their first house also created benefits: more deeply understanding how SL works, and more inter-connections between people, as they ask each other for help, create real estate businesses oriented to new users, generally creating a sense of collaboration and sharing. However, the attrition that ALSO results from this, from frustrated newcomers not knowing how to get ’situated’ in the world and a wide and varying number of practices for doing so may be mitigated by the Lab’s focus on the user experience (at the expense of the existing culture). Whether the possible increase in users and home owners outweighs these changes remains to be seen – Second Life is clearly becoming more of a ‘packaged good’ and is losing some of that frontier feel, the one where we all had to just kind of stumble along and figure it out.
(emphasis added)

I just returned from a quick reconnoiter of the Nascera continent. Even before I teleported, the World Map showed me that, within each themed area, every sim’s layout is exactly the same… aesthetically awful, but useful to my purpose, which was to count parcels. Each of those sims contains an average of 50 (give or take some inaccuracy on my part). Even if every resident of a sim paid their Premium account at the discounted annual rate of U$D 72, that’s $6 x 50 = $300/month income to the Lab. If they pay monthly, income jumps to $500 per sim. Result: anywhere from $5 to $205 per region over what they get for the same area of Private Island, and who knows what percentage of that is already profit?

That’s 50 empty homes per sim… the furniture and decor sellers must be happy, right? But there you have the latest symptom of the consumerization of Second Life, replacing a self-created experience with a purchased one. Meanwhile, the Lab stands to reap additional transaction fees from Residents buying and selling L$.

“Our World – Our Bottom Line”

Don’t like it? Well, you can always go to OpenSim now… but you have to go naked, and Ruthed.

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