Linden Lab says no bans, TOS disavows
The inclusion of section 4.4 of the Second LifeTerms of Service has caused considerable fear, uncertainty and doubt among the users, even leading some to refuse to log in, so that they do not accept those terms in their current form.
On the face of them, the clause essentially makes any breach of the Brand Center guidelines a breach of the Terms of Service. Linden Lab's representatives say that they would not treat external breaches of those guidelines as a Terms of Service breach -- however, legally their statements to that effect fail to hold water.
You see here we get into a thing called the Parol Evidence rule -- that the document is the sole repository of the terms of the agreement.
Imagine that you are signing a contract for a service. The contract says that there's a cancellation fee of $400 if you cancel within 12 months. The salesman tells you you can cancel within three months without a fee. The contract doesn't say that, however.
You are unhappy with the service and you decide to cancel within the three months. The service provider can hit you for the $400 -- and they have the paperwork to prove it, and to also prove that you agreed.
In fact the Second Life Terms of Service explicitly disavows any contradictory assurances or statements by Linden Lab, its employees, agents or representatives when it says (under General Provisions) that "This Agreement sets forth the entire understanding and agreement between you and Linden Lab with respect to the subject matter hereof."
That means that the only applicable terms are what's in writing in the Terms of Service that you, the user, have agreed to -- and nothing else. Any additional statements or assurances are not binding.
In black-and-white, and binding in a court of law, any failure to follow the Brand Center guidelines is a violation of the Terms of Service. There isn't another interpretation.
The only way to use Linden Lab marks without breaching the literal contractual Terms of Service is to either strictly follow the guidelines in the Brand Center or to obtain express written permission from Linden Lab itself.
Linden Lab may choose not to enforce the guidelines as a Terms of Service breach with account sanctions, but by the wording of the Terms of Service, Linden Lab is under no contractual obligation whatever to undertake the selective enforcement of the Terms of Service of which they have made assurances -- whatever anyone has said thus far or states in the future. Not as long as the Terms remain in their present form.
