Linden Lab's laundry list of legalese: Terms of Service versus Fair Use

'I cannot read the fiery letters,' said Frodo in a quavering voice.

'No,' said Gandalf, 'but I can. The letters are English, of an ancient mode, but the language is that of Lawyers, which I will not utter here. But this in the Common Tongue is what is said, close enough:

'You agree to review and adhere to the guidelines on using "Second Life," "SL," "Linden," the Eye-in-Hand logo, and Linden Lab's other trademarks, service marks, trade names, logos, domain names, taglines, and trade dress..'

He paused, and then said slowly in a deep voice: 'These are the Master Rules, the Terms of Service that rule all accounts.'

It's our general impression that the goal of a company's lawyers is to essentially have little or no work. That's hardly surprising, really. If your company lawyers are extremely busy then your business is probably under threat, regardless of whatever it is that they're busy with - from copyrights to contracts.

Monday's trademark policy announcements from Linden Lab to Second Life users are fascinating, at many levels. Firstly the average user can't tell the difference between trademarks and copyrights, and probably isn't very clear on either. Second, the changes with the Terms of Service pull a legal switcheroo on users, taking the matter from trademark law to contract law.

You see, a lot of people who routinely use Linden Lab's trademarks do so in an entirely legitimate way. It's nominative fair use established by case-law under the Lanham Act. Basically you can't talk about Second Life without actually saying Second Life. You can't reasonably talk about Linden Lab without saying Linden Lab -- oh, you could say Linden Research Inc, but hardly anyone would have any idea who you were talking about which defeats the point.

So there are fair uses of trademarks (noting that this has nothing whatsoever to do with fair use in copyright law) -- which is why you don't see newspapers littered with trademark symbols and disclaimers of association. The usage is protected by law, so long as you meet the legal tests.

Monday's Terms of Service changes act (intentionally or not) to destroy that fair use, by switching the domain of the debate. We don't know who made what changes, but you can't imagine that the legal people would have been ignorant of the effect of the ToS changes.

Essentially, if you logged in after the ToS changes on Monday, you've agreed to do two things.

1. You've agreed to review all the policies at the new Brand Center. You already did that, as a part of your new agreement with Linden Lab, right?

2. You agreed to abide by them. Period. Without exception. Which means no legally protected fair-use, because that violates the guidelines, and hence your agreement via the ToS with Linden Lab.

You've agreed, and your account is hostage to that agreement -- in the event that someone at Linden Lab should choose to make it so.

Why the extra wordage in the Terms of Service? From a legal standpoint it seems completely unnecessary. A change in the Terms of Service isn't even required. The law coupled with the guidelines in Linden Lab's Brand Center already provide a complete picture, and Linden Lab can already suspend or terminate your account "for any reason or for no reason"

The Terms of Service change in that context gives the impression of being a veiled threat. It's more than that, though -- it commands you to give up your rights to nominative fair use where that use conflicts with Linden Lab's laundry list of legalese. Or else. This pulls the matter right out of the arena of trademark law, and back into contractual law, with enforcement by the governance team.

Now that's fascinating.

We've contacted Linden Lab about this, among other matters relating to the new policies and are still waiting on responses.