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.]


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’…