Despite claims that Second Life represents a world ripe for exploitation for all sorts of companies, legal expert Vincent Scheurer wonders if a world where everything is at the whim of a single corporate entity is the right place to be doing business...
Why do MMO games have end user licences? In most cases, the answer is pretty clear. An end user licence is the contract between an MMO operator and an individual player. The MMO operator dictates contract terms which protect it from litigation and maximise its income. These terms are generally pretty one-sided, and always non-negotiable. Few people bother to read them before clicking ‘I accept’.
Fair enough – freedom of contract and all that. Nobody has to sign up to an MMO. It’s the MMO operator’s bat and ball, so the MMO operator makes the rules.
However, there is one category of MMO product to which this logic simply should not apply. This is the ‘metaverse’, the pervasive online world which seeks to do more than just to provide a gaming environment.
Metaverses may well play an increasingly important role in interactive entertainment now and in future, and as a result I would like to ask a question about the approach taken by metaverse operators towards their customers, and specifically to ask about their end user licence terms.
The classic example of an attempted metaverse is Second Life. Clearly, Second Life is not a ‘normal’ MMO game. Instead, it is (or at least seeks to be) a living community, an environment which can cater to (almost) all of its members’ needs. It does not just provide short term entertainment or escapism – it literally provides a ‘second life’, with the same emphasis on long term friendship, work, recreation, housing and speculation which we see in our ‘first life’.
I contend that the end user licence terms (or ‘terms of service’) for a metaverse like Second Life perform a very different function to those of an MMO game provider. Terms of service for a metaverse exist to regulate a permanent, persistent alternate reality inhabited by real human beings. As such, they are much more akin to the written constitution and fundamental laws which regulate us in the real world.
For the last six months or so the mainstream press has carried stories about Second Life. Many of these stories focus on the potential for individuals to make real money in this virtual world.
We are told that one speculator has already made a million real dollars from trading virtual real estate. Others hope to make money by creating content for sale to other users of Second Life. One story even referred to a respectable secretary in Scotland who made money as a virtual supermodel and escort. And of course the multinationals are also flooding through the Second Life gates.
Much of the income generated for Linden Lab, the operators of Second Life (including income from the ‘sale’ of virtual real estate) requires the development of a thriving capitalist business economy within Second Life.
However, the current Second Life terms of service will, I maintain, have precisely the opposite effect. Rather than allowing for the development of a successful online world they run the risk of stifling it at birth.
To illustrate my point, let us compare the terms of service of Second Life with the US Constitution. At first view this may sound comically absurd, but both documents have similar purposes – they both regulate the freedoms and responsibilities of their respective citizens.
The US Constitution enabled the development of one of the most successful capitalist societies known to history. I would imagine that Linden Lab hope to achieve something similar within Second Life, although perhaps on a slightly smaller scale. However, the Second Life terms of service adopt a very different approach to that taken in the US Constitution:
Private Property Rights
Respect for private property rights is the cornerstone of capitalism and the free market. As the Fifth Amendment to the US Constitution puts it: “no person shall be deprived of property without due process of law”.
In contrast, the Second Life terms of service are less generous: providing that “Content, Currency, objects, items, scripts, equipment, or other value or status indicators” accumulated by users (including account names) “may be altered, moved or transferred at any time for any reason in Linden Lab’s sole discretion”.
Now Linden Lab might state that users retain copyright in their online creations, and that this is the same thing as owning property rights in Second Life. But it isn’t. Although each user retains copyright in the work he or she has created, he or she must license this work to Linden Lab for ever (and free of charge) so that it can remain in Second Life long after the user has been thrown out.
In addition, every user is required to agree that “Linden Lab has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the [Second Life] Service without notice or liability to you”.
If you can get kicked out of your house at any time, then do you really own it at all?
Freedom of speech & expression
A thriving community requires a free exchange of ideas. The First Amendment to the US Constitution puts it thus: “Congress shall make no law … abridging the freedom of speech, or of the press”.
Second Life users are somewhat more restricted: users are prohibited (amongst other things) from transmitting any content “as determined by Linden Lab in its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable”.
The US Constitution requires all lawmakers to be elected by universal suffrage, and limits their term of office. It divides government into three branches and establishes a series of checks and balances to ensure that no branch becomes too powerful. It also sets out the limited conditions under which the Constitution itself can be changed.
In contrast, Linden Lab makes all of the rules, and reserves the right to amend those rules “at any time in its sole discretion.”
The Fourteenth Amendment of the US Constitution guarantees all citizens a right to privacy, and it is difficult to conceive of a society that people would choose to visit (let alone colonise) which did not provide minimum privacy safeguards for its citizens.
The Second Life terms of service take the contrary approach: users must “acknowledge and agree that Linden Lab, in its sole discretion, may track, record, observe or follow any and all of [their] interactions” within Second Life.
Ultimately, why would anyone invest substantial time or money to build a business, or a second life, in Second Life when they have no democratic rights, no right to privacy, no freedom of expression and no property rights?
Instead, the terms of service encourage short term speculation (or “flipping”) of Second Life assets, and the sale of services outside Second Life (such as selling Second Life development services to large corporations), in each case at the expense of developing long-term in-game businesses or relationships within the Second Life metaverse.
So far, litigation has already been launched against Linden Lab by at least one disgruntled former citizen, Marc Bragg, who claims that Linden Lab unlawfully confiscated his virtual property and denied him access to Second Life.
I suspect that his case will eventually fail, as the terms of service are pretty clear about Linden Lab’s rights to do this. However, the issue of whether those terms of service should provide such power to Linden Lab is not going to go away so easily.
Of course, there are clear differences between Second Life and a ‘real’ community. After all, Second Life is the product of massive investment on the part of Linden Lab and its shareholders, and they might argue that this entitles them to make the rules as they see fit. But that might be to miss the point, if the point is to encourage and grow the Second Life community into a long term and thriving virtual world.
After all, history has shown that respect for privacy and property rights, democracy and freedom of expression are necessary components for a thriving economic and social system. Even MMO game providers are now taking account of this – EVE Online is reported to be instituting an oversight board made up of individuals elected by players to ensure that the game rules are applied equally to all player and player clans.
I wonder whether Second Life users will eventually demand more rights, and if so how they will go about doing so – and whether a virtual revolution might result in the guillotine for the current terms of service.
Vincent Scheurer is is a lawyer specialising in games contracts. He is the author of the video games section of the Entertainment Law Handbook, published by the Law Society, and runs his own business, Sarassin LLP