Linden Lab’s ‘Daniel Linden’ recently posted a statement entitled “Keeping Second Life Safe, Together” on the Official Linden Blog. The post encourages Second Life residents to report “broadly offensive” content to Linden Lab, and promises that people promoting or providing such content will be “swiftly met with a variety of sanctions, including termination of accounts, closure of groups, removal of content, and loss of land.”
‘Robin Linden’ says the post does not articulate a “new position,” but anyone who has used Second Life for more than a couple of months knows that it represents a significant shift away from Linden Lab’s longstanding hands-off approach to content. As a result, the post has sparked many editorials, protests (some with their own sub-controversies), and discussions.
What exactly is prohibited? “Real-life images, avatar portrayals, and other depiction of sexual or lewd acts involving or appearing to involve children or minors; real-life images, avatar portrayals, and other depictions of sexual violence including rape, real-life images, avatar portrayals, and other depictions of extreme or graphic violence, and other broadly offensive content.”
In other words, “pretty much whatever we feel like.”
I’ll add my voice to the growing chorus. This is a poorly considered, dangerously over-broad, and annoyingly opaque policy statement. It should be reversed for a number of reasons, not the least of which is that it potentially takes Linden Lab out from under the protection of Section 230 of the Communications Decency Act, and thereby exposes it to liability for Second Life users’ creations.
More on that later on. There’s this soapbox sitting here, you see, and one of the privileges of editing VB is that occasionally I get to climb up on it. You can skip to the jump if you want to bypass my rant.
Still with me? First, understand that I’m generally impressed with Linden Lab, and I generally like where they’ve taken Second Life. I’m hardly a regular critic. That said, this is the worst misstep I’ve seen them make, and I think it’s going to take quite a bit of backpedaling to fix it.
The most glaring problem with the “Keeping Second Life Safe, Together” post is that it represents, at best, a half-baked policy statement. For example, the prohibition on “extreme or graphic violence” on its face prohibits every military simulation in Second Life. ‘Robin Linden’ subsequently clarified that “extreme violence implies extreme, disgusting, beyond-the-pale imagery, such as rotten.com-style images of violent death, not videogame-style carnage,” but I don’t buy it. Does that mean that if a simulation looks like Hitman it’s okay, but if it looks like Hostel it isn’t? How is watching someone get shot in the face more acceptable than watching someone get slashed with a meat cleaver?
And “depictions of sexual violence?” What does that even mean? Would a showing of Secretary be prohibited? On its face, the policy puts every BDSM-themed area in Second Life in violation. Consider this: depictions of sexual violence are allowed in real life — using people’s actual bodies. The practice is so broadly unoffensive that there is a street fair devoted to it every year in Linden Lab’s own backyard.
But most troubling, in my opinion, is the shiny-happy-people doublespeak that’s being used to defend this move; it’s a new tactic for Linden Lab, which I’d always thought of as refreshingly honest as far as corporations go. Even the title of the post in question is deceptive — what does “safety” have to do with “offensiveness” in the first place? It gets worse. ‘Robin Linden’ defended the move during her office hour by asking, “When faced with an opportunity to create a new world where things are supposed to be better, do you think there’s a place for slavery, forced sex, and the like?” First off, I don’t think that Second Life is a “new world where things are supposed to be better,” I think it’s a three-dimensional communication tool that simulates an environment we’re familiar with, but if you want to play that game, I’ll take the question. You’re damn right there’s a place for it — just like there is in a public library, an art gallery, and a history book.
Your “new world where things are supposed to be better” should not include censorship of the expression of ideas based on what you say your citizens want to see and hear about, even if you do think it’s for our own good. Because even if you are right about this policy this time — and you emphatically are not — the next guy might decide to ban political commentary or art that criticizes religion, and your policy sets the precedent. This is political theory 101 stuff, and if you’re going to act like this is a nation, you better start there.
The absurdity of this question really can’t be overstated — Haley’s Roots could not be enacted in this “new world where things are supposed to be better,” neither could The Color Purple. Should actual slavery and actual forced sex be forbidden? Of course. And they are, by real laws in the real world; Linden Lab runs a simulation. Even if you view it as a nation of some sort — perhaps particularly if you do — the “government” should no more ban depictions of some of these things than a library should ban descriptions of them.
But my voice is just one of many who are saying this policy is a bad idea from a user-relations and political theory standpoint. There are three legal points that are being routinely overlooked in the commentary on this, so I’ll get off my soapbox and get to the law stuff.
First, almost every article I’ve read about this inaccurately accuses Linden Lab of violating Second Life participants’ “free speech rights.” That’s not how it works — the First Amendment of the U.S. Constitution only prohibits government action. If Linden Lab wants to turn Second Life into Club Penguin, it’s allowed to. Like it or not, you don’t have a constitutionally protected “right” to do much of anything in Second Life.
Second, the term “broadly offensive” is very close to the language of a landmark obscenity decision, and that’s probably at least partly why it is being employed here. Although again, we’re not dealing with government action (so Linden Lab is free to apply whatever criteria it likes) and the post from ‘Daniel Linden’ goes beyond sexually explicit material, the “Miller test” for obscenity appears to be instructing the policy. The test comes from the 1973 United States Supreme Court ruling in Miller v. California.
Delivering the opinion of the Court, Chief Justice Warren Burger wrote,
The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards‘ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In other words, obscene material is material that is “broadly offensive.” I suppose Burger could have saved a few words if he’d talked to ‘Daniel Linden,’ but at least the Supreme Court ruling includes an exemption for works with serious literary, artistic, political, or scientific value.
Finally, though they say it isn’t so, everyone participating in Second Life recognizes that the ‘Daniel Linden’ post represents a policy shift — and the shift is a terrible idea from a legal perspective. There’s never been a shortage of “broadly offensive” content in Second Life. For better or worse, Linden Lab has always been very hands-off about content. Not any more.
VTOReality beat me to the punch on this, asking, “Are Lindens Heading Into Deeper Legal Water?” The short answer is: “Yes.” I’ll quote VTOReality here, which in turn, quotes intellectual property attorney Michael Bennett:
Up until this very recent ruling providers of interactive computer services have been immune from liability for content created by third parties.
The touchstone of section 230(c) is that providers of interactive computer services are immune from liability for content created by third parties. The immunity applies to a defendant who is the “provider . . . of an interactive computer service” and is being sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 230(c). “[R]eviewing courts have treated § 230(c) immunity as quite robust.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)
But the Fair Housing Council v. Roommate.com suit has take a major twist and turn on this.
Michael Bennett, a partner in the intellectual property department of Chicago law firm Wildman Harrold, said that previous cases confirmed and expanded immunity for ISPs, Web site operators, and listservs.
“Then this one comes down and begins to draw some lines,” he said during an interview Thursday.
The new ruling means that sites that control user-generated content — especially dating and automated brokering sites that use “matching” technology — are considered publishers and are therefore liable, Bennett said.
“If you guide the content too much, or select which of the content will be allowed, you could lose immunity for that portion of the content and be held liable as a publisher,” Bennett said. “The problem arises when nonpublishing Web sites want to put up blogs and forums. Typically, they want to guide the content to some extent, so that it reflects an appropriate image for the site and company.”
Let’s be clear here: Roommate.com is having its feet put to the fire for providing a questionnaire and publishing users comments. That’s relatively passive. Linden Lab, on the other hand, is actively editing user-created content and encouraging users to report “broadly offensive” content for removal. That potentially puts Linden Lab on the hook for any content they miss that violates the Communications Decency Act. Given the size of the user base relative to the administrative team and the simplicity of content creation, there’s just no practical way they’re ever going to be able to get it all.
Hopefully, both for Second Life users and for Linden Lab, someone in legal will take a hard look at this policy and get it reversed or clarified such that it can be reasonably enforced. It is a terrible policy for many reasons, not the least of which is the increase in Linden Lab’s own exposure to liability.
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