July 9th, 2008 by Benjamin Duranske
I downloaded and installed Lively yesterday (the “it’s in the browser” hype aside, Lively requires a download since it operates as a plugin). Somewhat oddly, there was no EULA or TOS document to agree to during the installation process. Indeed, there were no options or buttons to click on at all. Double-click “Install Lively” and a few minutes later, a you see “Thanks for installing ‘Lively by Google.” No click-through? No draconian terms of service? Cool. But on the other hand, no options regarding what is installed and where it went? I’ve never much liked hidden installs, particularly from companies that are in the business of cataloging everything.
Turns out the TOS is on the web site, and a comment from PJ on VB’s first post on Lively breaks down the install: “you have to download their installer program – which then sets itself up as service on your system for instance. You don’t get to chose where on your system to install it either. And while a browser plugin might be necessary to run this in the browser, why would it be necessary to install a [Browser Helper Object] for google update?” That’s a very good question.
Though there’s no click-through agreement, the Lively Terms of Service themselves are linked at the bottom of the Lively homepage. My initial impression is that they’re either kind of half-baked in comparison to the TOS and EULAs we’re used to seeing from MMO games and virtual worlds, or a genuine attempt to slim down the legalese. Either way, there are aspects which seem likely to be revised in the future.
For example, the Legal Notices section currently includes this provision:
Your Intellectual Property Rights
You agree to release Google, its affiliates, and their agents, contractors, officers, and employees (collectively, “Google Parties“), from all claims, demands, and damages (actual and consequential) arising out of or in any way connected with a dispute. You agree that you will not involve any Google Party in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement with any other user, any developer, or any other third party in connection with the Lively Service. If you attempt to do so, (a) you shall pay all costs and attorneys’ fees of any Google Party and shall provide indemnification as set forth below, and (b) the jurisdiction for any such litigation or dispute shall be limited as set forth in the Terms.
Three comments on this. First, it is one of the most direct “do not sue us for stuff users do” provisions I have ever seen. It says if you have “a dispute … with any other [Lively] user … developer, or … third party” you agree not to sue Google too. It isn’t quite that simple. Though the provision provides some protection for Google, there are a number of theories under which you could bring suit in spite of it — if you did and lost, though, Google would probably try to collect its attorney fees under the provision above. Somewhat oddly, Google does not reference their DMCA policy here, which is actually what would govern their liability for at least the copyright side of IP. That policy is linked in the “Community Standards” section of the TOS.
Second, although this doesn’t say so directly, it appears that users do get to keep whatever IP rights they’d otherwise have in anything they create in Lively. This isn’t specific to Lively, it comes from Google’s general TOS (repeated on the Lively site). Aside from giving Google an irrevocable license to make copies and modify your content in order to host it, “you retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.” This is arguably better than Second Life’s TOS, as it doesn’t carve out an exception for patent rights. At least for now, though, user created content aside from largely pre-defined venues is not really an option anyway. From the Lively FAQ:
Add and Remove Objects: Can I Create Content?
Most of the avatars, clothing, and objects were created by vendors working for Google. We’re also working with a small number of trusted testers, vendors and creative agencies as part of a test for creating custom items.
We hope to enable user-generated content and even more customization soon, but until then we’ve given you tons of choices from the catalog to help personalize your Lively experience.
Finally, regarding this section, it appears that the legal documents are just as much in beta as the service. This provision, for instance, was clearly just copied and pasted out of a gmail-specific document.
Google does not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit or store in your Gmail account.
The Community Standards section is also interesting. That is where Google sets out what you can’t do in their virtual world. It’s a rather long list, and appears to squarely place Lively in the PG-13 camp. The whole list of no-nos is below:
Nudity and Sexually Explicit Material
We don’t allow nudity, graphic sex acts, or sexually explicit material. This includes making sexual advances toward other users. We also don’t allow content that drives traffic to commercial pornography sites or that promotes pedophilia, incest, or bestiality. Google has a zero-tolerance policy against child pornography. If we become aware of child pornography, the content will be removed and we will report it and its owners to the appropriate authorities.
Violent or Bullying Behavior
Don’t threaten, harass, or bully other users. This includes using scripted actions or objects to harass or attack other users. We encourage anyone in Lively to try to work out disputes with others on your own. In cases of serious threats, harassment, or bullying, we will take action.
We don’t allow the promotion of hatred toward groups of people based on their race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity.
Only users 13 years of age or older are permitted to use Lively, and users under 18 must have their parent or legal guardian’s permission to use Lively. If we become aware that a user is under 13, we will delete their account. If you engage in inappropriate or unlawful interactions with users who are under 18, we may deny Lively access, terminate your account, notify law enforcement authorities, or take other appropriate action.
We don’t allow impersonation of others or other behavior that is misleading or intended to be misleading.
Private & Confidential Information
We don’t allow unauthorized publishing of people’s private and confidential information, such as credit card numbers, Social Security Numbers, driver’s and other license numbers, or any other information that is not publicly accessible. Be aware that anyone can access a room in Lively or participate in a chat with you and that everything you share with others on Lively may become public information. To protect your own privacy and confidential information, be careful not to share any private or confidential information with others.
We will respond to clear notices of alleged copyright infringement. For more information or to file a DMCA request, please visit our copyright procedures.
Lively should not be used for unlawful purposes or for promotion of dangerous and illegal activities. If found engaging in such activity, we may deny Lively access, terminate your account, notify law enforcement authorities, or take other appropriate action.
Spam, Malware and Phishing
We don’t allow transmission of malware, viruses, or anything that may disrupt service or harm others. Spam is also prohibited and may include repeated actions, repeated objects, self-replicating objects, or undesired advertising. Malicious scripts and password phishing scams are also not allowed.
Some of this is a welcome addition to the usual virtual world TOS (banning impersonation, undesired advertising, and self-replicating objects) but there are a few oddities in here. I actually think that prohibiting “Violent or Bullying Behavior” is a nice idea, but why include a “Slap” animation that can be applied to someone else without their consent then? And regarding sex… well, good luck with that one, Google. The first few pages of user-created rooms sorted by popularity already feature “FULL SEX,” “Adult Dating,” and “Sex School.”
Related Posts on Virtually Blind
- Commentary: Second Life’s Terms of Service Stifle Innovation by Making Patents Worthless In-World: "I recently zeroed in on a clause in Second Life's Terms of Service..." (24 comments)
- Second Life Gambling Ban Clarified and Enforced; Terms of Service Remain Unchanged: "Second Life creator Linden Lab recently clarified its July 25 ban on..." (14 comments)
- Google’s Virtual World “Lively” Goes Online: ""Lively," a virtual world from Google went online today, as predicted..." (9 comments)
8 Responses to “Commentary: Lively by Google’s Beta Terms of Service Raise Predictable Legal Issues”
Leave a Reply
Notes on Comments: Your first comment must be manually approved, but after it is you'll be able to post freely with the same name and email. You can use some HTML (<a> <b> <i> <blockquote> etc.) but know that VB's spam blocker holds posts with five or more <a> links. VB supports gravatars. Got a gravatar? Use the associated email and it'll show with your comment. Need one? Set it up for free here.