That’s possibly the only news that could have offset the news (at least temporarily) of the inherently contradictory, “broadly offensive”-to-me 05/31 Linden-blog policy excrement.

Life would be hell without you lawyers.

http://secondlife.typepad.com

If that’s is indeed the case, then to make a further point:
I believe the entire issue is that the federal definition of “child pornography” requires that an actual child exist or include a depiction “indistinguishable from” a child (Linden Lab can only hope SL will one day produce a world indistinguishable from reality) (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002256—-000-.html).

For that was what Ashcroft v. Free Speech Coalition was all about. (http://en.wikipedia.org/wiki/Ashcroft_vs_free_speech_coalition).

Also of note, some analysis of Congressional response in the form of the PROTECT ACT
http://www.firstamendmentcenter.org/analysis.aspx?id=11865

1) declare, with certainty, that some particular activity is illegal in any and all jurisdictions with access to Second Life, absent an actual, clear indication, given (for US citizens at least)
a) a Supreme Court decision appearing to directly dispute this
b) the uncertainty of outcomes of obscenity tests, particularly since
1) presumably juries in residents’ home jurisdictions (where transmission originates) would decide what is obscene and therefore illegal, NOT Linden Labs
2) a jury in jurisdiction X may find some Second Life activity obscene, while a jury in Y may not conclude the same for identical activity, whether it’s this kind of activity, or some other kind in the future

So for Linden Labs to take it upon itself to act as arbiter over all possible jurisdictions and declare its outcome for a situation that is absolutely unclear in its own country of operation, in my mind, is wrong. Linden may claim that it has contractual authority to close accounts for any or no reason. That is one thing. But what it appears to have done, instead (again, by my reading of the blog post), is to attribute its decision to ban two individuals (in the first paragraph) on its declaration that their conduct was illegal (later in the post, as otherwise Linden doesn’t it doesn’t explain its reason for banning). Though, admittedly, it doesn’t explicitly state the nationality of the first two individuals.

Linden states “If Linden Lab learns that someone is engaging in, advertising or promoting locations or activities involving the depiction of sexual or lewd acts involving minors, their account will be terminated…” Even if residents create machinima/plays of Romeo and Juliet/Traffic/American Beauty (as specifically mentioned in Ashcroft v Free Speech Coalition)? Linden again doesn’t caveat and doesn’t defer to authorized adjudicators on questions of legality. This is entirely aside from the glaringly obvious fact that Linden previously did not make this same legal determination, and only did so after an enormous wave of bad media attention in conjunction with greater financial interest in Europe.

But perhaps a group of individuals decides to protest the Iraq war, and in accordance with the TOS, creates a simulation of soldiers dropping bombs on civilians’ homes, leaving bloodied and mutilated bodies of virtual women and children strewn about across their private, mature parcel/sim. Is Linden going to declare in knows with certainty that they’ve acted illegally, thereby justifying a decision to ban them? Or perhaps another group does so with terrorists bodies? Will Linden firmly believe there is illegal conduct, or will residents lose their property/financial interests for political/moral reasons?

About the proprietary interests, I believe if it were not for Linden’s continuous campaign to claim residents have property interests in their service, it would not be an issue. Virtual land simulating real land doesn’t make it prima facie ownable, no. I believe this may be a special case -a case created by Linden itself- only for the reason that Linden explicitly allows something to be ownable and transfers that ownership to its users. Linden makes clear in its public statements an intention for users to own something, though not the data itself, and not the servers themselves. I’m not sure what it is, or to what extent that ownership affords real world rights and I’m also not sure even Linden knows. Yet, I’m also not unwilling to believe that representations of Linden’s (owned) data of a virtual ‘thing’ ultimately (after courts sort it out) be viewed as nebulously a concept as that of “intellectual” property (which of course, neither exists, but only in one’s mind). Otherwise, what is it that Linden claims residents own?

Two points to offer in the analysis of “virtual child pornography.” In trying to find the details of the German law in English, I checked out wikipedia which detailed that the UK law on virtual child pornography deals with altered images that look like “pseudo-realistic photographs.” The activities on SL would not fall under those standards. But I have not found German statutes in English so I can say what the standard is for “virtual child pornography” and whether that includes drawings of children having sex, even if it is not truly children having sex or something that looks like real children having sex.

The other point is that child pornography can be considered obscene material if not child pornography itself. If it can be found to violate the Miller test under US law, then it would still be illegal. This would be if roleplay can be considered content. Also because it is mostly about a pruient interest, it could fall under anti-obscenity laws.