The Virtual Whirl: The emperor's new terms

This week The Virtual Whirl virtual mailbag is stuffed to overflowing with queries about the new Second Life Terms Of Service (TOS) that launched slightly behind the new Second Life 2.0 viewer. The new version has grown from 7,500 words to more than 30,000 words across no less than 18 separate documents, all of which you must agree to in order to use the service – and golly, it has raised some questions.

The Terms of Service are supposed to outline your rights and obligations at every moment with respect to your use of Second Life, your relationship to Linden Lab and to other users, as well as the rights and obligations of all of those parties with respect to you.

This covers everything from permissible and impermissible behavior to intellectual property rights, land and object ownership and more. It's obviously vital for it to be detailed, comprehensive and easy to understand.

It's quite a shame therefore, that the whole lot seems to not just be written by lawyers, but appears to be written for lawyers.

Obviously, I'm an old-fashioned sort who believes that when I'm handed a contract outlining my rights and obligations that the darn thing do so simply and clearly. I've never been one to think that I had to have an attorney on hand every time I signed an agreement. After all, if it isn't clear what your obligations are, how can you be reasonably expected to fulfill them?

Apparently the Pennsylvania Legislature is inclined to agree, given that they passed the Plain Language Consumer Contract Act (73 P.S. §§ 2201-2212). There's an international movement among lawyers to introduce more plain and simple language into contracts and agreements. Linden Lab's legal team are apparently not subscribers to this ethical system.

So, what's changed?

Well, there's some give and take in the new TOS. You're now allowed to use or implement a patent in Second Life without automatically granting all users a perpetual free license to the patent; Rules for snapshots and machinima have been clarified and aren't particularly restrictive, given that they seem to reflect what is already state of the art for professionals working with these media. That item alone deserves some applause.

A new 30-day termination clause has been added. It is very similar to that used by cable-providers and ISPs who anticipate changing services and costs during the lifetime of a contract. Why it is there is not exactly clear.

Even stranger, clause 11.3 now specifies that the Lab may suspend or terminate your account without liability, in the event that they choose to switch Second Life off. "You acknowledge and agree that a general suspension or discontinuation of the Service, in whole or in part, for any reason, will not constitute a Material Change requiring advance notice," because clearly that's not something you might want any advance warning of, right?

At least it replaces the old "for any reason or for no reason" phrasing, so that's something. It also takes pains to incorporate all of those "unwritten" rules and policies (the ones that have been posted in various Lab blog posts in the past, but nobody can find anymore).

The new TOS appears to disclaim more liability than any previous version. This includes liability due to failure, but also for negligence and gross negligence. What's the difference between the two? Negligence is where you fail to exercise the same degree of care that any reasonable person would apply in similar circumstances. Gross negligence is when you don't even make an attempt.

Is it enforceable?

Probably not very. Most of the terms of service you find for virtual environments and MMOGs are likely to be torn apart in a courtroom. This one appears even less likely to win the favor of a judge or jury than is the norm due to its length, complexity, ambiguity and contradiction between documents.

Not that you should take my opinion on it, of course. That's something you should be talking to your attorney about ... which is the very core of the problem here.

With this document alone, Linden Lab has without a doubt significantly revised and revamped the "first hour" experience of Second Life. In fact, at average English reading speeds, it would take you at least two hours to read through it all before you click "I agree".

Assuming you read it at all – and in all honesty, most of you simply aren't going to read it.

You're only really required to abide by it.

If you don't, of course, you're allowed to terminate the agreement and cease using Second Life. All of the Lab's responsibilities and obligations to you end instantly at that point (assuming there are any. In fact, I can't find a single one so far.) On the other hand, you still have obligations to the Lab that survive the termination of the agreement.

Isn't that nice?

All in all, while I've dealt with all manner of daft, lopsided, exploitative and bizarre contracts and agreements over the years, the new Second Life TOS has to be the single most demoralizing block of text that has crossed my desk in my life.

So, what are your thoughts? Have you even read all of the material through? Do you have any intention of doing so?