Yesterday was also the last rezday I’ll be celebrating in Second Life. A recent culmination of circumstances has pushed me away from Second Life, and triggered my migration to OpenSim. I’ll be wrapping up my affairs over the next month, then putting my Second Life account on the shelf. By this time next year, I expect SL to be mostly irrelevant to my day-to-day life.

I’ll explain why I’m leaving below, but I don’t want this to be a completely whiney frumple post. Yes, I’m leaving Second Life, but it has been a rich and amazing four years. Here are a few of the interesting things I’ve done in my time in Second Life (in no particular order):

• Built hundreds of silly little things as part of a weekly speed-building competition at The Shelter.
• Worked a variety of odd-jobs: scripter, texturer, builder, animator, artist, teacher, clothing designer, shop owner, and more.
• Taught dozens of students how to build with prims. (I was an instructor at NCI for several months, teaching one class at first, then later three.)
• Exhibited my artwork in several virtual galleries.
• Discovered countless things about myself that I never knew.
• Met the best friends I’ve ever known. (And hope to keep even after I’ve left.)
• Fell head-over-heels in love. (More than once.)
• Opened up a shop to sell several of my creations. (Some were more useful than others).
• Earned thousands of US dollars working as a metaverse development contractor. (And found out how much fun it is to pay self-employment taxes.)
• Created a series of “chibi” comics featuring toon versions of me and my friends in various silly situations.
• Organized the Creator’s Playgroup, a small group of friends who would do show-and-tells, themed creation games, and collaborative builds.
• Exploited a short-lived server glitch in order to build a giant megaprim sculpty octopus.
• Won second place for my entry in a UI design contest, earning a cash prize of over USD $700. (I also earned a multi-post tirade about the Leninist and anti-populist concepts my design supposedly exhibited, and about the downfall of the SL economy that would occur if I ever had the opportunity to implement my design. That was almost as good as the $700.)
• Owned a variety of homes: a modernist house built into the side of a cliff overlooking an icy waterfall; a peaceful garden facing out to the sea; and a sky platform high above a volcanic island that resembles a sea creature when viewed from above.
• Took an epic multi-day sailing trip of the mainland waterways, navigating my trusty Flying Tako through narrow channels, shallow waters, and hundreds of perilous sim border crossings — and lived to tell the tale. (My motto and catch phrase was “Sand bars and ban lines be damned!”)
• Developed a tool to create avatar animations with Blender. (Then gave it away for free.)
• Attended the Resident Experience Team Office Hours for months, providing feedback, ideas, and patches.
• Organized the User Experience Interest Group after the Resident Experience Team abandoned the above mentioned office hours. (We’ve met weekly for a year and a half, generating countless great ideas for Linden Lab to ignore.)
• Contributed numerous software patches to improve the Second Life viewer. (Linden Lab even got around to using a few of them, eventually.)
• Got fed up with LL and started a new viewer project with my friend McCabe — despite neither of us being much good at C++ at the time.

So you could hardly call my time in Second Life dull. There were ups and down, excitement and frustration, good times and bad. All considered, I’ve had a good run in SL. But the time has come to move on.

I’m sure some of you have guesses about why I’m leaving, but it’s not as simple as it seems. I could point to the kerfuffle over the Third-Party Viewer (TPV) policy as the reason for leaving, and people would nod in understanding. But that’s not the whole story.

True, after the annoucement of the new Terms of Service (which requires you agree to the new policy), I was certain I would have to leave SL and cancel my account before April 30 to avoid the legal implications of an overreaching and ill-conceived policy. But the policy has recently been revised enough that, although I still don’t like the policy, it’s no longer an urgent danger that prevents me from logging in.

So, I could stay in Second Life — if I wanted to.

But you see, by my own nature, I’m a creator. I can’t help creating things. It’s what I do, and I love to do it. It’s what attracted me to Second Life in the first place. SL was the ultimate canvas, a “game” where the goal was to create and share cool things with other people. My own skillset and interests in art, computer graphics, and programming served me extremely well in SL. There wasn’t (and still isn’t) much in SL that I couldn’t do if I applied myself to it. And as you can see from the sizable list above, I’ve tasted a huge variety of what SL has to offer.

Yet for the past year or two, I’ve had the growing feeling that the things I enjoyed about Second Life have been slipping away. I attribute this feeling to a number of factors:

• Frequent policy missteps by Linden Lab. Seriously, LL screws up so often that I have an entire blog category devoted to their messes. After a while, I just stopped caring enough to even write about it. Linden Lab pulling a serious policy gaff has become less novel than a cat playing the piano on YouTube, and far more depressing. A cat can learn to paw at the piano keys, but Linden Lab apparently can’t learn to respect or understand its user base.
• A gradual shift in Linden Lab’s corporate culture. When I first signed up for Second Life, Linden Lab felt like a cool, creative company full of awesome people who were passionate about SL. Today, Linden Lab still has plenty of awesome people, but it’s not a cool, creative company anymore — because the people with a real passion for SL aren’t the ones driving the company anymore. Maybe it’s inevitable that as a startup grows, the suits take over and it becomes focused more on profits and other serious-business-type stuff, and less on making something cool. But that inevitability doesn’t make it any less unpleasant.
• A growing cynicism towards Linden Lab among Residents. This goes hand in hand with the policy missteps and corporate culture shift. Unfortunately, there is a vicious cycle at work here. As a whole, Linden Lab doesn’t understand the Residents, so it frequently does things that upset and anger them. Having been burned by Linden Lab in the past, Residents habitually see everything the Lindens do and say in the worst possible light, and frequently overreact and lash out. These negative reactions from the Residents drive the Lindens further away, so that they understand and relate to the Residents even less, and are more likely to do things that upset them. Both sides started the cycle, and both sides perpetuate it. (Myself included, I’m afraid.)
• An increasing prevalence of fear, intolerance, greed, pettiness, and viciousness among the Resident population. For as long as I have been in Second Life, there have been doomcriers, bigots, moneygrubbers, and drama mongers. But they were just a nuisance, fringe elements that the rest of us shrugged off as we went about our lives. But today, those things are an integral part of the culture and mindset of Second Life. The dwindling percentage of Residents who are here to create, learn, and enjoy life are being overwhelmed by individuals whose lives are ruled by the most base and destructive aspects of human nature. Or so it seems to me. Maybe I’m just getting crotchety in my “old age”, and resentful of a new generation of Residents with a different set of values. But regardless of whether the phenomenon is real or just my perception, Second Life no longer feels like a haven for folk like me.
• My own shift towards more serious occupations. When I first joined Second Life, I enjoyed it tremendously. I learned new things daily, socialized with friends constantly, created and experimented freely, and explored the grid, eyes wide with wonder. Over time, though, I became more involved in “serious” things, and began to accumulate obligations. Teaching, running a shop, working as a contractor, organizing groups, maintaining a viewer, helping users and customers. The carefree days of my virtual youth are long gone; I’ve drifted away from my old friends, and my emotional connection to SL has frayed. Sure, I could make changes in my life to become more involved in the fun parts of Second Life. But given the overall situation, it makes more sense to start again in OpenSim.

So you see, the TPV policy was simply the impetus to act on my growing dissatisfaction with Linden Lab and Second Life. If the TPV policy hadn’t been so screwed up, I wouldn’t be leaving right now, but my departure was inevitable given the way things have been going. (Besides, given Linden Lab’s reputation for making exactly the same mistakes every time they introduce a new policy change, I doubt they were capable of not screwing up the TPV policy.)

So, what’s next for me? The exciting frontier of OpenSim, that’s what!

I’ve always wanted to have my own sim to mess around with, but a Second Life sim has always been prohibitively expensive for me. (A full SL sim costs USD $295/month, plus a $1000 set up fee). Now I have my own self-managed sim on OSGrid with free uploads, an unlimited prim count, megaprims however I want them, LightShare server-side windlight control, and precise collision meshes for sculpties — for a paltry USD $15/month.

So for me, OpenSim is a creative paradise. A giant, octopus-shaped creative paradise.

That said, OpenSim is still a rough and rugged frontier. I happen to enjoy that fact, and my skills are put to good use there. The reason I can run a sim for only $15/month is because I have the technical know-how to set it up and manage it myself. Less technically-inclined people should expect to pay in the range of $40-$100 per month for a managed sim from a commercial OpenSim host. Still, it’s a bargain compared to Second Life.

But OpenSim is certainly not for everyone. There are still plenty of glitches, and there aren’t all the amenities of Second Life. The number of users is much smaller than Second Life, and they are spread across a large number of separate grids. There’s not nearly as much content as there is in SL, and generally not “professional quality”. Not all of the grids have any money system, so you won’t find such a bustling commercial economy as you do in SL. But the flip side of all this is the fact that it’s easy to make a name for yourself in OpenSim if you’re open, friendly, and have a bit of talent.

I’m sure I’ll be happy pioneering OpenSim; it’s a good fit for me. As for my plans with Second Life, I’ll be tying up loose ends over the next month. I’ll be closing down Cuddlefish Junction soon, but I’m making arrangements for my most popular products to be sold through other shops.

I’m not disappearing, though. I’ll still be responding to emails, I’ll still be on Plurk, and I’ll be posting here about my adventures with OpenSim. I’m not cancelling my SL account, and I’ll probably drop in from time to time to export my creations or attend special events. In fact, given how infrequently I’ve been logging in over the past year, hardly anyone would have even noticed the change if I hadn’t said anything.

So, this isn’t really a goodbye; I’m just moving down the block. See you around the metaverse!

Thankfully, he said that further reading had improved his impression, and I explained to him that the reason many of my posts are critical of LL, is because the things that get me riled up enough to write about are often things LL has done which I strongly disagree with. So, my blog only reflects the extremes; the other stuff doesn’t get blogged.

In an interesting and related occurance, my friend Goldie Katsu tweeted a link to an article by Louis Gray, The Five Stages of Early Adopter Behavior. (You might want to go read it now, or at least skim the bold headings.)

Gray’s description doesn’t fit me well at all, I think. I never did any promotion to outsiders. I never built up a “following” (I don’t have the personality to be a cult leader). While I’ve had numerous ideas on how to improve things, I only really interacted with the Lindens after the open source client was released and the JIRA set up. All in all, I’m not an attention whore like Gray describes. I just love Second Life with a passion.

Nevertheless, I paused when reading about the fourth stage, “Sense of Entitlement, Nitpicking and Reduced Use”. Reduced use certainly rings a bell. But do I feel entitled, feeling that SL must be the way I say it should be? Is my complaining just the sign of a disgruntled early adopter who feels neglected?

Well, maybe, but I don’t think so. The stuff I criticise tends to fall in a specific category: bad (or at least controversial) policy decisions by LL.

Service outages and such I can deal with. The Grid is a friggin’ huge, complex system, and the Grid Monkeys (an affectionate term) who bang on it, and the Code Monkeys who write it, are but mere mortals. It’s gotta be a tough job, and shit happens.

I have far less forgiveness of deliberate policy moves which, in my opinion, are harmful to Second Life. I may be a bit disgruntled, but only because I perceive Second Life as being sullied by unwise decisions by the government, LL. What I feel is the same thing that one feels while watching her country decay under incompetent, corrupt, or oppressive rule.

I’m not an early adopter desperate for attention. I’m not a pessimist who claims at every turn of events that the world is ending. I’m a patriot, and Second Life is my country, my home and native land. [Update: See my comment below about what I mean by "patriot"]

I’m loyal to it because it’s the best damn idea I’ve seen in a long time, and damned if I’m going to hold my tongue while it’s strengths are cut out one by one in the name of political correctness and corporate relations.

So you see, my loyalty lies with Second Life, not with Linden Lab. Where I perceive the actions of Linden Lab to be in conflict with the best interests of Second Life, I side with Second Life.

Turmoil’s Beginnings

SLB5 was already on somewhat shakey ground back in May, due to some “suboptimal” planning by the Resident organizers. The call for entries was barely advertised, and the applications were only scheduled to be approved a month prior to the opening. So there was a bit of a time crunch, but nothing the SL5B people couldn’t handle. (Heck, the SL3B volunteers, myself included, put that together in less time, and it was awesome!)

But then Linden Lab stepped in with a heavy eye-in-hand: the eye watching everything and the hand squashing whatever they didn’t like. Linden Lab is providing the land for the event, so they decided to step in and dictate how the ostensibly Resident-run event will be run.

In previous years, the celebration had allowed both PG and mature exhibits. Not overt stuff that violated the terms of service, mind you, but exhibitions weren’t rejected based on an association with sex or violence. Not so this year, it seems — allusion to such disgustingly human impulses are now verboten. So speaketh the Lab.

Likewise in previous years, the SL Kids community was heavily involved in the planning and construction of the event and grounds, and their exhibits were always amazing and wonderful. (I’m not surprised there; many of SL’s most talented Residents choose to appear as child avatars. Maybe the avatar frees them from the oppressive boringness associated with adulthood?)

But this year, the SL Kids’ contributions were respectfully declined. Everybody knows Linden Lab is probably just scared of rabid “investigative journalists” inventing exaggerated stories of sexual ageplay and pedophilia in Second Life, but LL is too proud to admit having their head on the chopping block.

Residents rise up

It was only after SL Residents rose up en masse to protest LL’s move that Linden Lab backed down somewhat (while acting like they hadn’t changed position, as always). They even approved 2 exhibits by SL kids, as a sort of “See? We’re not being bigots, we swear!” gesture.

Alas, even with LL’s placating move, SL5B was in trouble. As the controversy had been unfolding, a number of volunteer organizers stepped down from the SL5B commitee. SignpostMarv, who was heading the effort, had resigned just prior to the news breaking; others resigned after they heard the news.

A number of other volunteers stepped up to fill in the vacant roles. Trinity Coulter stepped into SignpostMarv’s old shoes, heading the effort and trying to keep the whole thing from falling apart in the wake of LL’s meddling. Slim though it was, SL5B still had a chance of pulling through in the few weeks left.

The Meddling Continues

Last night, Trinity came by Tateru Nino’s office hours to ask for some tips (Tateru being, in the words of Carl Metropolitan, the only person to have organized a successful SLB, in particular SL3B). Tateru’s biggest advice was to find some responsible, trustworthy people, and delegate the organization efforts to them; she also passed along some suggestions of people to ask. There was a brief spark of hope.

Then Linden Lab inserted itself again. This morning, Dusty Linden (purportedly in charge of “facilitating” events) ejected Trinity from the SL5B group; no one knew why. When I asked Trinity, she said that “it was determined” that it would be in the best interest of SL5B for Trinity to “step aside”. Trinity didn’t comment when I asked her who did the determining (she says she got distracted with other things; eventually I had to log off without an answer).

All other accounts indicate that Dusty actually ejected Trinity — that includes a transcript of the automated announcement sent on group chat at the time. So, I’m having a hard time believing that Trinity stepped down of her own volition.

Shoshana Epsilon’s latest post backs up this account, and further reveals that Dusty Linden is attempting to block any image with a child and adult in the same picture, or any image of a child on or near a bed — even completely nonsexual, family-oriented pictures. Shoshana describes it as a blanket policy (no pun intended), not a case-by-case review to screen out images which are or could be construed as erotic images of children (or child-like avatars).

Resident-run, Linden-ruined

So, as I said, SL5B is a bust. I honestly can’t see it recovering from all the meddling Linden Lab has done. The idea that this is a Resident run event is now patently false. Of course, Linden Lab has made no effort to organize it themselves; they have restricted their efforts to disrupting the work of the Residents.

The first head organizer resigned over disagreements with LL. The second was usurped by LL. A large number of other organizers have resigned or are thinking of resigning over LL’s disruptive involvement. And the event is less than two weeks away.

I think it’s safe to say that SL5B would have run smoother if LL had stuck to their usual non-involvement and minimal support, as they had done in previous years. Maybe next year (assuming there’s something to celebrate next year), we should “respectfully decline” LL’s involvement, and instead have our own event on our own land with our own rules.

Except that they put themselves in this situation.

Second Life is under external pressure because of a number of misconceptions (some more misconceived than others) that exist among the general public — the misconceptions perpetuated by the commercial media because they sell well: Sex. Weird sex! Lots of weird, kinky sex online! And kids?! What’s going on in this sick, perverted online haven of creeps and pedophiles?! Read all about it! Throw in a few politicians eager to prove that they’re “thinking of the children” on an election year, and you’ve got a lot of (self-)important people with a professional interest in painting an exaggerated, sordid picture of Second Life.

The natural alliance here would be between Linden Lab and the Residents, based on the common interest in making sure Second Life survives, against the external forces that threaten it. Linden and the Resident, hand in hand, making a better, freer world, in the face of opposition. A beautiful image, no?

Would that it were so. But Linden Lab, it seems, doesn’t want its Residents anymore. It doesn’t want a free, open, creative world. It wants a sanitized, media-friendly world, that universities and big corps won’t think twice about making major investments in. LL’s message for Residents now is: Thanks for making us so popular, but go away now. You’re embarrassing us in front of the cool kids.

Linden Lab has continually neglected and offended its user base, and thus turned a natural ally into a second enemy. If they make a move to please the media, they raise ire with their users. If they make a move to assuage or pay respect to their users, they leave themselves open to attack from the media. Damned if they do, damned if they don’t. It’s a tight spot for LL.

Or so they imagine.

It is only Linden Lab’s continual poor choices that have created this scenario. Faced with external pressure, Linden Lab repeatedly chooses the course of action that alienates its users and destroys goodwill.

Let’s imagine a hypothetical scenario.

Suppose that a self-styled “news reporter” with a kiddie porn obsession is waiting for any opporunity to regurgitate another story about pedophiles and bizarre sexual practices in Second Life.

Further suppose that a United States politician, smelling an opportunity to make a name for himself in an election year, is drooling in anticipation of any sign of controversy involving Second Life, so that he can push forward a nonsensical bill in the interest of “protecting the children”.

Now suppose that there’s an upcoming annual celebration, which will be watched with an eagle eye by those vultures. It’s clear that even the slightest appearance of endorsing either “children” or sexual kinks in SL will be ripe for media spin. You might as well slit your own throat and lay down in the savannah; your eyes would be pecked out just as thoroughly.

There’s the scenario. Now, you have a choice of how you’ll handle it. Do you:

a) Head off the threat, dispelling the myths, rumours, and exaggerations about activities within Second Life, and revealing the vultures as the self-serving fear-mongers that they are.

b) Work with the potentially controversial communities to reach an arrangement that mitigates the risk without excluding them or dismissing their contribution to Second Life as unwanted or illegitimate.

c) Carefully explain that, while you regret the necessity forced by the current political climate, it would be a grave risk to Second Life as a whole for those communities to actively participate in the celebration.

d) Reject the communities, but don’t explain your reasoning or make any concessions. Set yourself up as the oppressor. Let imagination and speculation run wild.

If you chose (a), you would regain the respect of your users and re-establish Second Life as a platform for social progress, but at moderate risk of reaction from conservative elements of the public. If you chose (b), you would still establish goodwill with the communities and with your user base as a whole, with only a small risk. Even if you chose (c), Residents would just sigh about the times we live in, and thank you for being so forthcoming and responsible about it.

Of course, I don’t need to tell you what would happen if you chose (d). You can look around and see for yourself.

For the uninitiated, the SL Kids are RL adults who express their inner child in Second Life, donning a child-like avatar, laughing, playing, and letting the worries and cares of adult life slip away.

For some reason, some people find it disturbing that a grown adult might find it enjoyable to relive their childhood. Even more strangely, many of the people who decry child-like play have no objection to adults (or even actual children) pretending to shoot each other, chop each others’ heads off, run each other over, or any of the other themes that are so prevalent in video games and movies these days.

Rampant violence? That’s fine. Hopscotch? My god, we have to put a stop to that!

Now, I’d hate to accuse Dusty and the higher-ups of being disgusting, despicable bigots without having hard evidence. More likely, they’re just shit-scared that some ignorant, fear-mongering “reporter” from the German media or the BBC will pounce and tear Linden Lab limb from limb with an asinine article equating child avatars with pedophilia.

Well, here’s a thought for Linden Lab: instead of caving in to ignorance, perpetuating injustice, and discriminating against one of the most wholesome segments of the Resident population, why not take an active role in promoting education, justice, and tolerance?

1. Educate yourselves. Whatever god-like powers a Linden has within Second Life, they’re all too human in RL, and nobody is free of some form of bias. Put on a child avatar and interact with the SL kids community for a while. Learn to understand what it means, and replace fear of the unknown with appreciation of a positive community.
2. Educate the SL population. Stop condoning intolerance and promoting fear. Stop encouraging Residents to abuse report anyone they disagree with. Engage in a public education campaign to help Residents shed their biases and learn to understand the diverse communities and cultures of Second Life.
3. Educate the rest of the world. Stop acting like SL Kids are SL’s “dirty little secret”. Instead of retreating whenever some reporter pushes out an ignorant, fear-mongering article suggesting that SL is the haven of pedophiles having sex with child avatars, counter their ignorance with the truth.

Let’s stop whitewashing the human condition, and start advancing it — towards knowledge and understanding.

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.

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.

I’ve created an image. I hope you find it amusing. If you so desire, you may download it in your choice of image format (listed at the bottom).

They are copyrighted, but permission to use the images (and any derivatives thereof) is granted to you under the Creative Commons Attribution-Share Alike license. The images are not trademarks, and you won’t be sued or legally threatened for displaying them on your blogs, web pages, in virtual worlds, or in other places. You can even make good-natured parodies of them with absolutely no fear of retribution.

Enjoy.

• Mouth in Foot (JPG, small)
• Mouth in Foot (PNG, small)
• Mouth in Foot (PNG, large)
• Mouth in Foot (Inkscape SVG) with ‘fancy’, black-on-white, and white-on-black versions.