Catherine Linden does not listen.
She does not answer questions asked of her either.
Granted, the marketing director of Linden Lab did post a second time on the official Linden blog about the new trademark policy, in response to the outcry in the
Second Life blogosphere, but this was nothing but a reiteration of the original position. The Lindens did not budge a millimetre.
Truth be said, there was one good thing about the second post: with the rephrasing cutting through the legalese, shortly after the revised ToS enforcing it was force fed on all residents at logon, many more bloggers started noticing things are really amiss – for one example, see Ciaran Laval’s change of mind on Your2ndPlace. Most important maybe, it spurned Gwyneth Llewelyn, whose ‘Second Life® Bloggers Require Clarification’ (reproduced by express permission on my own blog) clearly put the blogosphere’s questions before the Lindens, to the next logical step of presenting them with a petition to reconsider their policies. Thanks to Gwyn’s efforts to mount a real campaign, the petition has been open to for review and suggestions by other
SL bloggers before publication.
Whether you think already this is an issue, are convinced it is not, or are at loss about what to make of the whole fuss, I urge you to take the time to read the petition. Because, as you will realise when you do, Linden Lab are going far beyond the legitimate aim of protecting a vital business asset of theirs in the form of their trademarks. Not only did they suddenly revert a policy which has led thousands of residents to create blogs, fansites, services and similar around the world they live in, and that quite in agreement with the then lenient guidelines of Linden Lab, effectively thanking good and unpaid community building with a kick in the vitals and breaking all rules of good faith, both legal and moral, in my book – they also have abrogated themselves a censor’s right to decree how, and what is to be written about their products anywhere on the internet as long as you are a resident and wish to stay so, as Kit Meredith succinctly resumed.
But don’t take my word for it. Gwyn and her contributors have put all of the matters at hand much better than I could ever do it on my own, and the petition even offers what I think is quite a reasonable compromise to the Lab. Find it quoted in full after the fold:
Petition to Linden Lab on the Policy of Trademark Enforcement
Linden Research Inc., a company incorporated in Delaware, United States of America (“Linden”), doing business as Linden Lab®, developers of the Second Life® virtual world platform, owners of not only the Second Life® registered trademark (in the US, Europe, and other countries), and the eye-on-hand logo, but also of several recently registered trademarks (including, but not exclusive, to the words “SL”, “SL Grid”, “Second Life Grid”, “2nd Life”, etc.), has launched, in May 2004, the “Second Life® Fansite Toolkit”, which was later reinforced with referral programmes like “Viva La Evolution”, to positively encourage the widespread use of Linden’s trademarks, so long as it was quite clearly displayed that no infringement was intended, and a disclaimer to non-affiliation to Linden.
A direct quotation of the previous accepted use includes the following paragraph:
USE OF SECOND LIFE MARKS
While you are in full compliance with the usage guidelines described here, you may use the “Second Life” name on your website, as well as the related logos and graphics available at Toolkit, solely in the form described there. Additionally, you may use screenshots from Second Life to the extent that Linden Lab has the right to authorize use of the content within such screenshot, including screenshots of Linden in-world objects and Linden avatars, subject to these usage guidelines.
The full text of the acceptable use of Linden’s trademarks is published here. Three versions of the Fansite Toolkit were distributed by Linden, which included banners, logos, and a set of images, as well as a PDF encouraging their dissemination (the link is not available any more).
Under these gentle terms, users of the Second Life® platform have set up dozens of thousands of websites, blogs, forums, 3rd party services (both inside the Second Life® environment or on the World-Wide Web). The intended purpose of the “Fansite Toolkit” was not only accomplished, but overwhelmingly effective. From about 10,000 registered users in May 2004, the number of registrations climbed to over 13 million users in March 2008, and the growth continues – as well as the growth in the number of fansites related to the Second Life® environment. A quick search on Google comparing the number of times “Second Life” is referred on Linden’s own sites (9000+ results) compared to what the non-Linden sites (24 million results) shows quite clearly that the promotion and marketing of “Second Life” as a Linden product is, by far, being done outside Linden’s own feeble efforts – as it was intended.
The terms of the “Fansite Toolkit” enabled furthermore a small startup company in San Francisco, without any advertising, promotion, or little public relations in 2004, to create one of the most effectively known technologies on the Internet, enjoying raving press reviews in late 2006, and, since then, a product and an environment that cannot be further ignored by the mainstream. Like it or hate it, the Second Life® virtual world is now part of the Internet’s history. All this was achieved thanks to the huge community of very enthusiastic users of Linden’s platform, who have promoted its use way beyond Linden’s own ability to market their own product.
The secret of Second Life®’s success was, however, accompanied by an adaptation of the word to describe not only Linden’s product, but a new concept that did not exist before: a community of users that generate content in a shared environment, using Linden’s tools and Linden-managed computer servers to provide an interconnected grid where this content can exist. The usage of “Second Life” was never strictly associated with the client software (the 3D viewer installed on users’ computers), the server software (running on Linden’s servers), or the communication protocol (which, until recently, was even unnamed). Rather, “Second Life” was employed, for the past four years, to describe all the above together as a technology empowering user-created content in a virtual world environment using Linden’s technology. The subtle difference has, however, huge implications. “Second Life”, as employed on the 24 million links stored by Google (ref), describes not patented software (the Second Life® client is, indeed, free and open source) nor a “technology”, but an “environment”, a “virtual world”.
The situation is very analogous to the usage of the terms “World-Wide Web” or “Internet” (the latter having at some point been trademarked by Microsoft around 1995, with little success), both describing a certain use of several technologies, hardware, software, and telecommunications, but where no definite claim can be made on the resulting environment created by a community of users. Derivative words like “Internet Service Provider” or “Web consultant” are popularly used. The difference between those two terms is that no organisation currently managed to secure a claim to those names.
But further examples are also common, where registered trademarks have been adopted by a community of users generating content for their platforms. Thousands of sites and technologies have used the term “Mac” in their names, or even “Windows” (clear cases where the respective owners, Apple and Microsoft, have indeed solidly claimed their registered trademarks). “Mac” and “Windows” fansites abound and help the promotion of these technologies and platforms. The difference, in those two cases, is that the popularity of those technologies was heavily promoted by their owners through massive advertising and public relations. And still both companies “allow” the widespread use of their trademarked names in 3rd party websites, fansites, service providers, or even products!
Second Life®, by contrast, never enjoyed the same level of promotion by Linden. It relied on the “Fansite Toolkit” as the primary – and most successful! – way of “viral marketing”, effectively crowdsourcing the co-promotion of the Second Life® virtual world by its users. And these, obviously, were very eager to do so – since all participants in the virtual world, Linden and their users, benefit tremendously from this cooperative promotion. “Your World, Your Imagination”, Linden’s motto for their Second Life® virtual world platform, was taken to an extreme, and perhaps unprecedented, level in the history of technology dissemination.
Linden, however, now fears (probably very correctly) that the usage of Second Life® might fall under “genericide”.
Possibly advised by their legal advisers, Linden announced here and here that they would start as of now to aggressively discourage the usage of all Linden-related registered trademarks, thus effectively reverting its four-year old policy of co-promotion through marketing crowdsourcing. The major issue with the current population of Second Life® users is that dozens of thousands of products and services were created within compliance with the old guidelines, and there is no provision made by Linden to “grandfather” existing services now currently in existence. Almost all have no legal protection that will allow them to contest any of Linden’s claims in court to shut their services down if they receive Linden’s Cease & Desist letters. Linden’s claim to their trademarks is, naturally, factually correct, unambiguous, and entirely within Linden’s rights.
There is, however, one aspect of Linden’s claims where we feel the Guidelines are overshooting the legitimate intent of Linden Research in preserving their trademarked brands and preventing their dilution. We refer to the section “Proper Reference to Linden Lab’s Brand Names in Text”, which basically outlines how any mention of terms trademarked by Linden has to be written in any text published. Among other things, it claims to make sure the brand names are only ever used with an “appropriate generic noun” of which Linden provides a list, and that “as often as possible”, down to capitalisation, spelling, elisions and contractions. In effect, this precludes any usage of trademarked terms in text in most of the forms current nowadays, and dictates to commentators, bloggers and critics how and what to write when referring to trademarked terms.
The issue, however, is even more serious. Although Linden’s prevention of the use of trademarks under the new guidelines could be contested in court, either in the US or elsewhere, possibly appealing to estoppel, as a matter of fact, Linden can – through its new Terms of Service, that all users required to sign to access their content on Linden’s virtual world – simply ban any user that Linden considers to be in violation of their trademark claims. By virtue of the same principle, Linden can simply ban any user that exerts his or her rights to free speech, nominative use of trademarked terms as laid down by US law, or equivalent rights under local legislation.
This is “doing justice with your own hands” – without laws, without trial, without a jury, without recourse. The Linden Terms of Service allow Linden to ban any user from using their services, without any reason whatsoever. Linden can, at whim, delete accounts and content (even copyrighted content) from any user without a complaint.
Granted, complaints can be filed against Linden – but in a court of law. In at least one case (Bragg vs. Linden), a user of the Second Life® world managed, through a lawsuit, and with a settlement agreement, to get access to his content back. But this requires effectively users to sue Linden in order to get their access back, no matter if they are or not violating Linden’s trademarks. Linden does not require any impartial judgment to validate a user’s claims on the lack of violation. Linden can safely ignore their four-year-old policy and revert their decision at whim – because they can ban accounts that refuse to comply with their new Terms of Service.
In effect, Linden is able to enforce their own interpretation of the usage of their trademarks by banning all content they view as “threatening” to their claims on registered trademarks, no matter if it is displayed inside Linden’s virtual world or anywhere else on the world. Linden’s decision to ban avatars and remove content is unilateral and not appealable unless a user is willing to sue Linden in a court under the jurisdiction of the State of California.
This total reversal of Linden’s policy threatens to shut down most (fortunately not all) of the sites providing 24 million links to Linden’s products and services; it threatens to deprive Second Life of hundreds or thousands of 3rd party services, websites, fan sites, blogs, Second Life®-specific media, artistic and cultural developments, educational and research efforts – not to mention thousands or dozens of thousands of the most energic “evangelisers” that have co-promoted Linden’s products and technologies in the past which might, in less than three months, see their accounts banned and their content deleted with little or no hope of appeal.
Open petition to Linden Research, Inc.
The community of users of the Second Life® world always recognised, beyond a shadow of doubt, Linden’s full right to its registered trademarks, which were almost always duly credited, and clearly stated their non-affiliation with Linden and that they had no intention of infringing in any of Linden’s rights or claims to the trademarks. Some of those trademarks were never disputed, for several years since their registration and use by Linden, and Linden’s claim to them is solid and universally accepted world-wide. Linden, in return, gently condescended to a limited usage of their registered trademarks for specific purposes, well stated in a clear document (the “Fansite Guidelines”). The very few exceptions where abuse occurred could be effectively dealt with by Linden’s own legal advisers and were very reduced in number.
It is our belief that the extreme switch to the complete opposite of what has been actively promoted in the past four years is not a good marketing strategy – effectively, fighting off, one by one, all the most energetic promoters of Linden and their products, shutting down their right to talk and co-promote Linden’s technology and environment, ban their accounts, and remove their content. A four-year policy grants (at least under estoppel) the large community of enthusiastic supporters the moral right to request from Linden a better model of co-promotion, one that is fair and balanced, protective of Linden’s legal rights as valid owners of their registered trademarks, but also that allows “fansites” to continue to spread and promote Linden’s products without fear of litigation.
We thus propose the following:
- Accept that, by introducing the “Fansite Guidelines” four years ago, Linden effectively allowed co-branding and co-promotion of their registered trademarks, so long as these were displayed on “website[s] created and maintained by residents or other devotees of Second Life®, with content primarily focused on some aspect of Second Life.” and had no other purpose. These “Fansite Guidelines” lead to fair expectations (under estoppel) of goodwill of Linden towards a fair use of their trademarks without intention to infringe on any of Linden’s rights.
- Rewrite, but not eliminate, the “Fansite Guidelines” to be more strict, but still allow the usage of Linden’s trademarked words as part of the co-promotional effects, accepting that their existence in no way invalidates Linden’s claims on their registered trademarks, but only serve as a vehicle for promotion and marketing.
- Require that all such websites register with Linden and formally accept the Guidelines (very similar to the request for the display of the “inSL” logo). Remember your international audience, too, and provide translations as well.
- Reinforce the duty of all websites under the “Fansite Guidelines” to be strictly compliant with these, or face a Cease & Desist letter/Takedown notice.
Request to all owners of such websites a clear display of their non-affiliation with Linden or its subsidiaries, stated clearly and unambiguously.
- Reword the statements of the Brand Center, which currently states that no requests for the usage of any of the trademarks (with few exceptions) will be taken, and that most emails will never be answered (or even read). Instead, work on a case-by-case basis, grandfather existing products and services, and work with organisations, groups, and companies owning those websites to make sure they clearly comply with the Guidelines.
- Request assistance from the users to locate, identify, and report websites where your Fansite Guidelines are not in compliance, or their non-affiliation with Linden is not being clearly and unambiguously stated, or where your registered trademarks are illegally used. Deal with each case separately and encourage first the non-compliant websites to voluntarily display conforming information, and threaten with a Cease & Desist or takedown letter if they refuse.
- Remove the threat to ban avatars from users that have inadvertently ignored (or misunderstood) the Guidelines. Instead, warn them and give due notice of their lack of compliance with the Guidelines, encourage them to sign on and register their sites, and validate their compliance after the warning.
- Continue to invest in the world-wide co-promotion of the “Second Life®” brand by launching different levels of “affiliation programmes”; “inSL” is a good start but a very weak one with limited value (no aggressive promotion by Linden of the logo and word).
We would also request Linden to further clarify the potentially censurous policy towards residents implied in the guidelines in conjunction with the Terms of Service:
- Clarify that the rules and policies outlined in the brand guidelines under the heading of Proper Reference to Linden Lab’s Brand Names in Text do not apply to cases covered by rights of free speech, including but not limited to nominative use of trademarked terms under US law and equivalent rights conferred upon users of the Second Life® service by local legislation.
- Clarify that Linden Research does not intend to ban or threaten to ban users exerting the rights delineated above, independently of the contractual relationship created by their usage of the Second Life® service.
We feel that the above proposal, if correctly implemented, and duly promoted, will not only reinforce Linden’s claim to their registered trademarks, but positively encourage their further widespread in all media, without hurting the millions of hours spent in the past year by dozens of thousand of users to promote and disseminate Linden’s products and services world-wide.
Disclaimer: the petition was originally authored by Gwyneth Llewelyn, with contributions by others you will find acknowledged on its original place of publication: Gwyn’s blog, and is reproduced here with her express permission.