September 27th, 2007 by Benjamin Duranske
I recently zeroed in on a clause in Second Life’s Terms of Service which, if enforced, renders all patents — even pre-existing ones — functionally worthless against Second Life infringers.
This comes via a presentation (.pdf) from Fernando Barrio, a Senior Lecturer at London Metropolitan University. I think you had to be there to follow the presentation (though the pictures are funny) but it pointed me to this excerpt from Second Life Terms of Service:
You also understand and agree that … you automatically grant … to Linden Lab and to all other users … a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your Content.
You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else’s) patent rights.
Break that down. The first provision says that you agree that Linden Lab, as well as every user of Second Life, gets an automatic license to any patent you are granted on anything you invent in the virtual world. If this is enforced, then there is no reason to seek a patent on anything invented in Second Life. Millions of people and business, including Linden Lab, would have free licenses.
That’s a very big deal. A patent gives you the exclusive right to sell or license products that use your invention for a period of time (20 years in the US). Of all the IP rights companies hoard, patent rights are typically considered the most important. That is particularly true for technology companies, the very companies that could be creating genuinely innovative virtual world content, but largely aren’t. By making patents on virtual world inventions useless, Linden Lab makes innovation in the virtual world far less appealing.
The second provision says that by signing on to the service, you agree not to sue any other user, or Linden Lab, for infringing any of your patent rights for activity that takes place in Second Life. That’s a huge waiver.
How does it play out? Take a well known example — TiVo. TiVo has patents on a few of the cooler aspects of TiVo technology, which is one reason TiVo digital video recorders (DVRs) are easier to use, and more expensive, than the awful ones cable companies give away for free. If TiVo sees Second Life as a space it wants to move in to — let’s say to sell virtual DVRs with its patented features for people to watch television on in-world — it functionally can’t. Because by simply logging in, TiVo agrees not to sue anyone who rips off their previously patented inventions and sells them in Second Life, including Linden Lab. In fact, just by logging in to investigate possible infringement, users theoretically give up their right to bring a claim for any infringement they find.
I wonder if IBM got a side deal that voids this provision when it started holding meetings in Second Life, or if are they comfortable with the fact that they now have no ability to enforce any of their industry-leading 40,000 patents against Linden Lab or any Second Life user for in-world use.
It has always seemed odd to me that mainstream technology companies aren’t producing virtual-world products or innovating in the space, and that they generally don’t even have Second Life presences — this could be a big part of the reason why. If you were Steve Jobs, would you even log in to Second Life if it meant completely waiving Apple’s right to sue Linden Lab or any Second Life user for infringing any Apple patents in the virtual world? I suspect many professors, inventors, and CEOs have taken a pass on creating new technology in Second Life — and indeed, even visiting — for this very reason.
Given Linden Lab’s stated desire to allow users to protect their IP rights, this clause should be re-evaluated. Its elimination could only encourage innovation in the virtual world.
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