Go check out the Information Week interview with Mark Kingdon written by the always-lovable Mitch Wagner. Also check out the Technology Review Q&A, from which I shamelessly lifted the source image for my LOLMark above (and simultaneously flouted Linden Lab’s policy against displaying their “Marks”. Wakka wakka.) Just don’t listen to the sound clip, it’s bad audio quality and he says “Um” a lot. Not at all flattering for the CEO-to-be.

He may not be as pretty as Philip Rosedale, but he has all the qualifications for the job: a passing familiarity with SL (although he’s going to have to make another alt now that his secret identity is out), lipservice towards businesses and the creative types, and most importantly, the “tech startup CEO” hair. Lookin’ sharp, tiger!

But seriously, he does seem like a pretty good fit, judging from his previous experience. And his emphasis on improving user experience (including platform stability) is good to hear. He does seem to have this strange notion that he’ll be influencing how Linden Lab does things, but I’m sure Philip will get around to letting him know that the job actually only entails travelling, giving talks, and writing feel-good blog posts at random intervals.

4.4 Without a written license agreement, Linden Lab does not authorize you to make any use of its trademarks.

So reads the summary sentence for the now-infamous trademark clause in Second Life’s Terms of Service. That unfortunate choice of words, and the similar phrase contained in the full text for that clause, might just be the source of the confusion that has myself and other concerned Residents up in arms.

The full text of section 4.4 reads (emphasis mine):

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 (collectively, the “Linden Lab Marks”) at http://secondlife.com/corporate/brand and its subpages, which may be updated from time to time. Except for the licenses expressly granted there or in a separate written agreement signed by you and Linden Lab, Linden Lab reserves all right, title, and interest in the Linden Lab Marks and does not authorize you to display or use any Linden Lab Mark in any manner whatsoever. If you have a written license agreement with Linden Lab to use a Linden Lab Mark, your use shall comply strictly with that agreement’s terms and conditions and use guidelines.

Here again we see “does not authorize”. But how are we to interpret it?

To a lawyer, it probably means, unambiguously, that Linden Lab does not grant special permission for you to use its trademarks. It’s not a restriction on your rights, just letting you know that you don’t get extra permission simply because you pressed “I Agree”.

To a layperson, though, it can easily be interpreted to mean that Linden Lab will not allow you to use its trademarks. You can’t write or say any of Linden Lab’s trademarks, anywhere, ever, in any form, or Linden Lab will ban you faster than you can say “nominative fair use”.

I’m sure it’s a perfectly benign phrase, when translated into plain speech. Heck, they even granted us a license to use “SL” and “inSL”! Linden Lab’s General Counsel is probably utterly baffled as to why we’re not genuflecting and thanking LL for its supreme generosity.

But, in general, we’re not lawyers, and we’re not fluent in the twisted dialect known as Lawyerese. To many (if not most) of us, it reads as a restriction of our rights, and a threat of legal action. And as Residents watching the gradual “crackdown” on various freedoms we had enjoyed in Second Life, we’re especially prone to interpret Linden Lab’s legal moves as being hostile and restrictive, even if they were not intended to be.

There is one sore point, though, that isn’t directly attributable to poor communication: the “taking-back” of the phrase, “my Second Life”. Linden Lab doesn’t want us to talk about “my Second Life” or “our Second Lives”, because of the potential for confusion and/or genericide. That issue is a legitimate concern on the part of Linden Lab, as well as a legitimate complaint on the part of the Residents.

However, I’m willing to find an alternate phrase (”my virtual life,” maybe?) that does not have the potential to damage Linden Lab’s marks. And just maybe, Linden Lab will be willing to find an alternate phrasing that is less prone to being interpreted as overtly restrictive. Then maybe we could put this whole mess behind us, and get back to living our virtual lives.

Hey, today was my second rezday! It has now been two years since I descended from the immaculate skybox in the heavens and took my first waddling steps on Orientation Island. (I’ll spare you the nostalgic stories of how things were “when I was a noob.”)

Last year at this time, I was waxing existential about my days in Second Life. For some reason I can’t remember, my continued presence in SL seemed uncertain back then.

So here’s hoping that one year from now, I won’t remember the reasons why it seems uncertain now, either.

The three-day bloggers “strike” ended yesterday, and Linden Lab issued further clarification on their new trademark policy. I wasn’t really sure what to say or how to feel about it.

At first, I was excited. We (bloggers, whether “strikers” or not) managed to evoke a response from Linden Lab. And a seemingly sympathetic response, at that. It was a well-spun post, I’ll admit. I was suckered in for a while. I so very much wanted to believe that everything was all good now.

But it’s not. Linden Lab has now confirmed that they are waving the banhammer threateningly at anyone who doesn’t comply. Their assurance that they will issue warnings first, reads like a sherrif from an old cowboy movie, brandishing his gun and saying, “Come along quietly, now. I don’t wanna have to shoot you, but I will if it comes to that.”

Linden Lab has also said, in plain terms, that they will use the Terms of Service as a tool to enforce compliance both inworld and offworld:

The Terms of Service are the conditions under which Linden Lab offers the Second Life services. One of those conditions is adherence to our trademark policy, meaning that any use of our trademarks–both inworld and outside of Second Life–must comply with our policy. (emphasis mine)

Clearly, this is a gun aimed squarely at the Residents, since the Terms of Service doesn’t apply to anyone except Second Life users.

And lest there be any confusion, this isn’t something that Linden Lab had to do to protect its trademark. This policy reaches beyond all logic, and beyond the requirements of U.S. trademark law. (As always, remember that IANAAL — I am not an anal-retentive lawyer. I’m just a concerned Resident with two ears and a brain between them.)

Firstly, non-commercial use of a trademark (e.g. on a fansite such as this one) is not considered infringement under United States Code, Section 15 (a.k.a. the Lanham Act) which spells out U.S. trademark law as we know it. The Lanham act also explicitly makes an exception for “All forms of news reporting and news commentary” regarding the thing the trademark refers to; that’s why newspapers don’t have to ask permission every time they print the words “Microsoft” or “Second Life”. Whether blogs qualify as a “form of news commentary” is not legally well-defined yet, but I think there’s a strong case to be made that many blogs do, depending on what’s posted. (This post, for example, is clearly news commentary: I’m commenting on the news of Linden Lab’s policy clarification.)

For the curious, I’ll excerpt the relevant text of the Lanham act:

The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.

Secondly, the risk of “genericide” from bloggers referring to Second Life by name is patent nonsense: not only does it fail to dilute their trademark, it actively strengthens their trademark by establishing and reinforcing the connection between the name “Second Life” and the services offered by Linden Lab. This non-dilution is recognized under the doctrine of “nominative fair use,” which has received significant support from judges in the Ninth Circuit Court of Appeals in the time since it was first applied in 1992.

The deciding factors for determining whether something is nominative fair use are as follows (excerpted from this PDF by Chad J. Doellinger; and also spelled out on Wikipedia for your satisfaction):

(1) the product or service in question must be one not readily identifiable without use of the trademark;
(2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
(3) the defendant must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder

(And mind you, this is for commercial use of someone else’s trademark. Noncommercial use is already in the clear under the Lanham act, and doubly in the clear if it passes these tests.)

You’ll notice that I’ve said “Second Life” quite a few times in this blog post. Am I liable for infringing and/or diluting Linden Lab’s trademark? Let’s check.

1. Since I cannot readily identify the Second Life service or world without using the trademark “Second Life”, the first test is passed.
2. Since I’m not going beyond the bare mininum, e.g. using the eye-in-hand logo or the font used in the Second Life trademark, the second test is passed.
3. And since I’m not implying sponsorship or endorsement by Linden Lab (and in fact, I’m going to extra measures to expressly disavow it), the third test is passed.

I can therefore be quite confident that a judge would find this to be nominative fair use, and thus neither infringing nor diluting the trademark. Add to that the fact that this blog is noncommercial, and that it also might qualify as a form of news commentary, and I’m in the clear under the Lanham Act, too. In other words, Linden Lab has no legal basis to object to my use of the words “Second Life” throughout this post.

But as I mentioned above, Linden Lab’s legal department has decided to reach beyond the law, and add further constraints under the terms of service; they have decided to be bastards above and beyond the call of duty. Noncommercial use, nominative fair use, news commentary use… they don’t care about the law, they just want you to obey their nonsensical, self-destructive whims.

Well, I’m going to continue to talk about Second Life and Linden Lab. And I’m going to call them by their names. And I’m going to continue to do all the things that I and other Residents did to give life to Second Life and get Linden Lab where they are today.

Linden Lab can go ahead and smack me with the banhammer and send me as many baseless Cease & Desist letters as they want. The moment they do, I’ll willingly stop talking about Second Life, contributing to Second Life, or logging in to Second Life, because at that moment I would know that Linden Lab had fully deluded itself into believing Second Life can exist without a community.

This blog is on strike from April 15 to April 18 as a symbolic gesture of protest against Linden Lab’s™ ambiguous and over-reaching new trademark policy and change to the Terms of Service (section 4.4). From the Terms of Service:

Except for the licenses expressly granted [in the Second Life® Brand Center] or in a separate written agreement signed by you and Linden Lab, Linden Lab reserves all right, title, and interest in the Linden Lab Marks and does not authorize you to display or use any Linden Lab Mark in any manner whatsoever. [emphasis mine]

Due to the ambiguous wording of both the policy and Terms of Service clause, they could easily be interpreted to mean that one is not allowed to even mention the words “Second Life” or “Linden Lab”, even in non-commercial contexts such as a fan site.

Normally, the effects of such a ridiculous policy would be mitigated by their unenforcability in courts, where nominative use — using a trademark for the purposes of referring to the product, service, or entity it represents — is recognized as fair use.

However, Linden Lab has put itself above the courts for determining fair use. If Linden Lab decides that it does not like how you are using its trademarks, even outside of the Second Life service, you are in violation of the Terms of Service, and they may may simply ban your account, shut down your business, and reposess your land. In such an event, your only means of redress is a costly law suit against Linden Lab to restore your account.

I find this policy therefore objectionable, and quite frankly foolish. Linden Lab has, at a glance, killed off its most effective marketing tool: the word of mouth of its fans. No longer can I write freely about all the cool things that happen in Second Life. I must be on guard at all times, making sure I place the proper trademark notices just-so, at peril of my virtual life.

But in actuality, the simplest way to avoid infringing on Linden Lab’s trademarks, is to make no mention of them. Ever. So, no longer do I reside in “Second Life”; I now reside in “a Certain Trademarked Virtual World”. I can no longer recommend “Second Life” to my friends — even if I had the goodwill to recommend it.

Thus, to protest this policy, and to symbolize the silencing of Second Life bloggers, no new posts will be made until after April 18, and this blog shall instead display this explanatory notice.

It seems the good folks in the networking department aren’t the only ones having connection issues.

Lately, it has felt like there has been a blog post every day about some problem in that certain virtual world. But I was curious: is that feeling accurate? Have there been issues daily, or does it just feel like it because sore points stand out in memory?

So, I looked over the blog posts for the past month, picking out posts made about unplanned service interruptions and other unexpected system troubles. It’s important to note that I’m not including things like planned rolling restarts, planned downtime for service upgrades, or other planned service outages.

But before I list the results, I want to preface them by saying: my purpose isn’t to bash the company behind that certain virtual world, nor the grid monkeys or other peeps who work there. I’m not suggesting that they are slacking off or incompetent — to the contrary, they have been reasonably prompt about both reporting and relieving (however temporarily) the issues. I salute the grid monkeys, and hope they all get 2 weeks vacation once this is over.

My purpose here is this: to put a spotlight on the climate of longstanding frustration that hangs over our beloved virtual world. Service interruptions are one component. Bugs and crashes another. New, user-hostile policies from the legal department yet another. It all adds up to a frustrating experience for users.

Now then, let’s look at the day-by-day look at blog posts about unplanned service issues for the past month, in reverse chronological order:

• April 5: Inworld (various)
• April 4: Logins disabled
• April 3: Inworld (various) (note: the load testing was ‘planned’, but issues lasted long after the expected 2PM end time) (Apparently, issues only seemed to persist, until you cleared your group cache or relogged.)
• April 2: Inworld (various)
• April 1: Inworld (various) and Support (phone, web)
• March 31: Inworld (various) and Support (Live Chat)
• March 30: Inworld (various), Inworld (transactions), and Support (phone)
• March 29: Inworld (money transactions)
• March 28: Inworld (asset)
• March 27: Inworld (transactions)
• March 26: [none]
• March 25: Inworld (various)
• March 24: Inworld (various)
• March 23: [none]
• March 22: Inworld (various) and Inworld (some regions unavailable)
• March 21: Inworld (various)
• March 20: [none]
• March 19: Inworld (objects lost after sim crash), Inworld (gray avatars), and Inworld (some regions unavailable)
• March 18: Logins
• March 17: Inworld (transactions), Inworld (various), and Logins
• March 16: [none]
• March 15: [none]
• March 14: [none]
• March 13: Inworld (various)
• March 12: [none]
• March 11: [none]
• March 10: Web (transactions), Inworld (some regions unavailable), and Web (events page)
• March 9: Inworld (various)
• March 8: [none]
• March 7: [none]
• March 5: Support (web)

As you can see, my gut feeling wasn’t wrong: there have indeed been service issues of some sort every day nearly every day for the past week-plus. Some days have had two or even three separate issues, while only ten days of the past month have had no issues posted. It averages out to just over 1 issue per day for an entire month. And that’s only counting issues that were widespread enough to warrant a blog post. There have been numerous localized issues such as individual sims going down (sometimes repeatedly), brief spurts of asset server slowness or failure, and others. As the innkeepers say, *sigh* Times are tough…..

All this is to say: It’s not easy to be loyal to that certain virtual worlds company these days.

But we try. Some of us do, anyway.

And now, because I don’t want this post to be a total downer, is the good news: H4 and WL have both come to fruition recently, and with them come hopes of fewer sim crashes and better client performance (not to mention increased sexiness all around). Dazzle is coming up soon, and although not everyone likes the new style, everyone should appreciate the fact that it’s just the first of many steps towards a cleaner, more organized, and easier-to-use interface. The Architecture Working Group is coming up with new, more robust ways to run the grid that should (hopefully) keep things running smoother in The Future.

See? It’s not all bad. You just have to look up from the waist-deep mud we’re in now, and see the purty rainbow on the horizon. ;)

Every once in a while, Linden Lab announces some new policy that makes me stop and think: “What is happening to the SL I once knew?” Second Life just isn’t the thriving, creative world that drew me in almost 2 years ago.

You’ve seen it, too. The steady march as Linden Lab changes from its freewheeling trippy hippie culture to the gray, legalistic, impersonal corporate culture. LL is tearing SL up by the roots, and alienating its long-time supporters, the people who have made Second Life worth living.

We’ve suffered through some objectionable moves before. Cory Linden being fired for his Pastafarian views. The Windlight, Havok4, and Dazzle projects stripping Second Life of the old tools that got us this far. LL’s refusal to deal more harshly with those despicable content thieves that are tearing the shirts off the backs of content creators and forcing them to pose nude for posters advertising content theft.

All those things I could tolerate, if only out of nostalgic longing for the Second Life that I once knew. But Linden Lab’s latest move, I simply cannot abide by.

I am referring, of course, to Linden Lab deliberately replacing Ruth, the very token—nay, the true trademark of Second Life.

Ruth was something that every Resident could identify with, most often on weekends during heavy asset server load. She reminded us that deep down in our hearts, no matter how much we spend on greased-up super-photorealistic skins and flexisculptyprim hair, we’re all just a short, awkward woman that waddles like a duck.

Ruth was the last vestige of our cultural heritage, the last thing I could hold on to and remind myself, “This is the heart of what it means to be in Second Life.” With Ruth being killed off, I can’t stand to log in to this virtual sham-world. It’s too painful; the login screen says “Second Life”, but it bears little resemblance to the Second Life I knew and loved!

Therefore, I’ve made the difficult decision to log out of Second Life permanently. My inventory and estate will be divided among my numerous secret alts: Gwyneth Llewelyn, Philip and Torley Linden, Lightwave Object, Tateru Nino, two-thirds of the furry population, and that guy who griefed Anshe Chung with the prim genitalia that one time. To the few SL avatars who are not under my control, I’d like to say goodbye, and thanks for all the squid.