TOS: Sexual content banned from SL?

[Thomas Galbreus]

Look at this in section 6.1 of the TOS:

You agree that you will not:
...
(vi) Post, display or transmit any Content or conduct or host any activity that is sexually explicit

Is this new? Or  was this ignored for eleven years?

Anyway, if this is taken seriously, the entire continent Zindra will have to close down, right?

Or is there something I don't get, perhaps because English is not my native language?

[Gavin Hird]

Beats me, but there seem to be a mismatch between 6.1 and 3.2 where the Maturity Rating policy referred to in 3.2 describe and categorize the items 6.1 says you agree not to host, post, display and transmit. 

[Tali Rosca]

Interesting. I think you're right.

A previous version of that clause said "Post, display or transmit any Content or conduct or host any activity that is explicitly sexual, intensely violent or otherwise designated as Adult under our Maturity ratings, except as set forth in those ratings."

Terms of Service Archive

That seems to be another casualty of the "we write something in our legal document, but don't worry, we don't mean it" 2013 update.

ETA: As Therea writes, in this case the intention seems pretty clear, given how explicit and detailed the description of the maturity rating is in other places of the document. It is still curious that they chose to reword an existing clause to introduce a contradiction.

[Theresa Tennyson]

---

Thomas Galbreus wrote:

Look at this in section 6.1 of the

TOS

:

 

You agree that you will not:

...

(vi) Post, display or transmit any Content or conduct or host any activity that is sexually explicit

 

Is this new? Or  was this ignored for eleven years?

Anyway, if this is taken seriously, the entire continent Zindra will have to close down, right?

 

Or is there something I don't get, perhaps because English is not my native language?

 

 

---

The TOS has language for all Linden Lab properties, and then there are separate clauses that are specific to each application. You've quoted the clause for all properties. In the specific clause for Second Life they reference Second Life maturity ratings that do allow sexual conduct, but only in specific areas of Second Life. In the law, specific language supercedes general language. This whole debate took place over a year ago.

[Ceka Cianci]

The TOS covers more than just second life now. They have other products

Going down to 6.3 you can see where they cover more of just second life in this area you are concrened about:smileywink:

 

6.3 Additional rules of conduct apply to users of Second Life:

In addition to the rules set forth in Sections 6.1 and 6.2 above, you agree that you will not:

(i) Use robots or other automated means to increase traffic to any Virtual Land;

(ii) Operate or profit from a "game of chance". For more information please see our Skill Gaming Policy;

(iii) Operate or profit from a virtual "bank" In Second Life. For more information please see our Banking Policy;

(iv) Post, display or transmit any Content that is explicitly sexual, intensely violent or otherwise designated as Adult under our Maturity ratings, except as set forth in those ratings.

(v) Violate our Second Life Mainland Policies, each of which is incorporated into this Agreement;

(vi) Violate our Maturity Guidelines. A region designated General is not allowed to advertise or make available content or activity that is sexually explicit, violent, or depicts nudity;

(vii) If you are an adult, impersonate a minor for the purpose of interacting with a minor using the Service, or stalk, harass, or engage in any sexual, suggestive, lewd, lascivious, or otherwise inappropriate conduct with minors on the Service, or attempt to contact or meet with such minor outside the Service, including without limitation electronically or physically, if you have reason to know or Second Life concludes that you should have known you were interacting with a minor on the Service, or otherwise engage in any conduct that violates our Teen Safety Guidelines;

(viii) Post, display or transmit any material, object or text that encourages, represents, or facilitates sexual "age play," i.e., using child-like avatars in a sexualized manner. This activity is grounds for immediate termination. You may review our full Age Play Policy here. You understand and agree that we may report any and all such incidents -- and any and all of your corresponding personal information -- to any authorities we deem appropriate, whether or not it in and of itself violates the law of your (or any) jurisdiction; or

(ix) Use “[slgaming]” as a prefix in the root object name field of any Inworld Content, unless otherwise approved by Linden Lab.

[Perrie Juran]

Section 2.2

"Additional terms may apply to certain elements of the Service (“Additional Terms”); these terms are available where such separate elements are made available on the Websites. If there is any contradiction between any Additional Terms and these Terms of Service, then the Additional Terms shall take precedence only in relation to that particular element of the Service. For examples of such Additional Terms, please see Section 12 below."  (my bolding)

[Thomas Galbreus]

Thanks a lot to all who answered, it helped me to figure it out.

Seems that stuff could be way more stringent and concise for a virtual world, perhaps of a more modern kind, that would not take the burden of including pixel pervs. So there's another advantage of not allowing porn in addition to the chance of a reputation that will allow more people to check things out  with modern technology - and be open about it. ;-)

[Marybeth Cooperstone]

The TOS, as it applies to "sexually explicit" content is not well written. Among other problems, Section 6.1 (vi) conflicts with Section 6.3 (iv).

 

The text at the beginning of 6.3 state that "In addition to the rules set forth in Sections 6.1 and 6.2 above, you agree that you will not:..." (emphasis added)

so 6.3 (iv) cannot be interpreted as an exception to 6.1 (vi).

Proper drafting would put language in 6.1 to allow exceptions. For example, it might have the phrase "except as allowed herein" or similar language. Better yet, subsection vi could simply refer to Section 6.3 (iv).

I think that it would be safe to assume that 6.3 (iv) as an exception to 6.1 (vi), but with Linden Labs one can't be sure.

This is typical of rules and laws relating to sex. People drafting the rules don't want to be explicit and want to spend very little time on the subject, and it doesn't get discussed enough to discover problems. That leads to mistakes and ambiguities. I once jokingly told a state legislative committee that the law concerning "crimes against nature" should be placed in the chapter dealing with environmental laws. That drew some laughter, but not everyone was amused

Marybeth

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note: the above sections 6.1 and 6.3 refer to the Linden Labs Terms of Service found at http://lindenlab.com/tos, © 2014 Linden Research, Inc. Last viewed July 20, 2014.

disclaimer: the above should not be considered legal advice and, by posting it, I am not soliciting business.

[Perrie Juran]

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Marybeth Cooperstone wrote:

The TOS, as it applies to "sexually explicit" content is not well written. Among other problems, Section 6.1 (vi) conflicts with Section 6.3 (iv).

 

The text at the beginning of 6.3 state that "

In addition

to the rules set forth in Sections 6.1 and 6.2 above, you agree that you will not:..." (emphasis added)

so 6.3 (iv) cannot be interpreted as an exception to 6.1 (vi).

Proper drafting would put language in 6.1 to allow exceptions. For example, it might have the phrase "except as allowed herein" or similar language. Better yet, subsection vi could simply refer to Section 6.3 (iv).

I think that it would be safe to assume that 6.3 (iv) as an exception to 6.1 (vi), but with Linden Labs one can't be sure.

This is typical of rules and laws relating to sex. People drafting the rules don't want to be explicit and want to spend very little time on the subject, and it doesn't get discussed enough to discover problems. That leads to mistakes and ambiguities. I once jokingly told a state legislative committee that the law concerning "crimes against nature" should be placed in the chapter dealing with environmental laws. That drew some laughter, but not everyone was amused

Marybeth

WORDPRESS

FACEBOOK

note: the above sections 6.1 and 6.3 refer to the Linden Labs Terms of Service found at 

http://lindenlab.com/tos, 

© 2014 Linden Research, Inc. Last viewed July 20, 2014.

disclaimer: the above should not be considered legal advice and, by posting it, I am not soliciting business.

---

Ever since they went with "One Ring To Rule Them ALL" I've maintained SL is so unique it should still have it's own separate TOS.

But isn't the issue with exceptions you raise covered in 2.2 that I cited above?  It expressly states,

"If there is any contradiction between any Additional Terms and these Terms of Service, then the Additional Terms shall take precedence only in relation to that particular element of the Service."

Nevertheless I would reiterate, SL needs it's own TOS to avert any possible confusion.

[RobertThorp]

Perrie,

I agree. SL needs its own TOS. 

For LL to rely on Sec. 2.2 does not correct their problem. That section is something we lawyers often insert into contracts to cover our mistakes - mistakes that we should not make in the first place. I would still say that LL did some poor TOS drafting, and should not have written Sec. 6.3 as they did.

Terms of Service are part of contracts. These often are so complex that those who write them can easily make mistakes. Having a separate "stand alone" TOS for SL would make it easier for those reading them and for those writing them, and would reduce the chance for errors.

I agree with my collegue Mary Beth - when sex or adult rated topics are delt with, people tend to skip proof reading or do it poorly. I am still laughing about the "crimes against nature" incident! She works with states drafting proposed laws; I work with businesses drafting contracts, including the TOS. I see the same thing - poor drafting and poor proof reading (the most important part of writing) in parts dealing with sex or adult rated topics.

Bob

The above should not be considered legal advice and, by posting it, I am not soliciting business.

[Ceka Cianci]

To me it all seemed such a lazy way to go about it..

It really confused the daylights out of a lot of people..The old TOS was confusing as it was,then to clump other products and try to put everything under one document.

Pfft

It just smells of lazyness.

 

[Perrie Juran]

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RobertThorp wrote:

Perrie,

I agree. 

SL needs its own TOS. 

For LL to rely on Sec. 2.2 does not correct their problem. That section is something we lawyers often insert into contracts to cover our mistakes - mistakes that we should not make in the first place. I would still say that LL did some poor TOS drafting, and should not have written Sec. 6.3 as they did.

Terms of Service are part of contracts. These often are so complex that those who write them can easily make mistakes. Having a separate "stand alone" TOS for SL would make it easier for those reading them and for those writing them, and would reduce the chance for errors.

I agree with my collegue Mary Beth - when sex or adult rated topics are delt with, people tend to skip proof reading or do it poorly. I am still laughing about the "crimes against nature" incident! She works with states drafting proposed laws; I work with businesses drafting contracts, including the TOS. I see the same thing - poor drafting and poor proof reading (the most important part of writing) in parts dealing with sex or adult rated topics.

Bob

The above should not be considered legal advice and, by posting it, I am not soliciting business.

---

On the other side it can work in our (the users) favor.

As I understand it, generally speaking, when ambiguous or contradictory terms appear in contracts, the courts rule in favor of the 'weaker party,' and in this case the users are the 'weaker party.'

That is after all another reason companies settle out of Court.  They don't want the Court to make a statement in fact regarding the terms, that is, set a precedent.

[Pussycat Catnap]

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Perrie Juran wrote:

As I understand it, generally speaking, when ambiguous or contradictory terms appear in contracts, the courts rule in favor of the 'weaker party,' and in this case the users are the 'weaker party.'

---

That largely depends on the political party of the judge, and of the various parties.

If the judge is GOP, they will rule for the GOP litigant. If the judge is Democrat, they'll just chicken out and recuse themselves so that a GOP judge can then come in and rule for the GOP party.

Its pretty pointless in the USA at least, to even bother citing back to doctrine's relating to precident or fairness or who had more ability to understand the terms. Our courts are fully political now.

 

[Marybeth Cooperstone]

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Perrie Juran wrote:

As I understand it, generally speaking, when ambiguous or contradictory terms appear in contracts, the courts rule in favor of the 'weaker party,' and in this case the users are the 'weaker party.'

That is after all another reason companies settle out of Court.  They don't want the Court to make a statement in fact regarding the terms, that is, set a precedent.

---

Perrie,

In general, you are correct. Another rule for interpretation of ambiguity is that the court will interpret ambiguous langauge against the party that wrote the contract. In this case it is clearly Linden Labs.

However, it is still best to avoid ambiguity. Any matter dealing with this would most likely be settled before trial, or certainly should be. But, considering the cost, it is best to avoid legal action by having a TOS that is clear to all and unambiguous. I agree that a separate TOS for Second Life will help avoid the complexity, ambiguity, and misunderstanding.

Sec. 2.2 may seem to help. But it reminds me of something I remember, as something to avoid, from my contracts class:

Sec. 2. We won't do xxx.

....

Sec. 38. Section 2 notwithstanding, we will do xxx.

That will frequently cause problems. Judges don't like it.

___________________

Ceka - Yes, it does smell of lazyness. Lazyness, whether on the part of the writer or the proof reader, is a major cause of ambiguity and other problems.

__________________________

Pussycat - I will agree that our courts, particularly the Supremes, are too political. However, I have had judges of my political party (somewhat well known) rule against me and judges of the other party rule for me.

Marybeth

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disclaimer: the above should not be considered legal advice and, by posting it, I am not soliciting business.

[Perrie Juran]

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Marybeth Cooperstone wrote:

---

<snip>

 Any matter dealing with this would most likely be settled before trial,

or certainly should be.

</snip>

 

---

This is where I disagree with you.  Too many things are getting settled out of Court and we are not getting the rulings we need.

Many years ago I was co-plaintiff (there were two of us) in a suit against an insurance company.

The State I was living in at the time had just 'overhauled' their insurance laws and based on those new laws the insurance company thought they had grounds to deny our claim.  We disagreed with their interpretation of the law and sued.

Trying to keep a long story short, we prevailed in Court.  The Court agreed with our interpretation.  That set a precedent for everyone after us who would file a claim under similar circumstances. 

They did "threaten an appeal."  But certain facts had come to light during discovery that gave us a strong standing to file a 'bad faith claim.'  When they hinted at an appeal our Attorney responded, "Do you really want to fight a bad faith claim here?"  They came back with a reasonable settlement offer and we accepted.

Three years and nine attorneys later (two on ours and seven on theirs) we were ready to move on with life.

One of the things going on is that companies are playing an "odds" game.  They are taking a gamble that the money they save denying claims that people don't appeal or where they don't prevail in Court will be greater than the money they pay out when they lose. They've got it down to a science.

 

 

 

[RobertThorp]

Perrie,

I deal with civil cases more like to one you were involved in, so I will jump in. There are cases that do need a court ruling, perhaps an appellate court where the ruling will set a precedent. Perhaps yours was one of those.

However, there are very many cases (most of what I handle) where new law is not needed; just looking at the facts in evidence is all that is required. In those cases, the two parties are expected to settle their difference out of court, perhaps without a law suit. The courts are available to decide the case if the parties cannot agree, but that takes up time in court and costs big money. Not only does it cost each party, but it cost the taxpayer money to operate the court system. The courts are over loaded now, even though only a small number of potential cases goes to trial.

Some cases, particularly those involving interpretation of a law, should go to court and should be heard at the appellate level in order to "make law". Other cases, the vast majority, should be settled by the parties.

Bob

 this is not a solicitation for business.

[Perrie Juran]

---

RobertThorp wrote:

Perrie,

I deal with civil cases more like to one you were involved in, so I will jump in. There are cases that do need a court ruling, perhaps an appellate court where the ruling will set a precedent. Perhaps yours was one of those.

However, there are very many cases (most of what I handle) where new law is not needed; just looking at the facts in evidence is all that is required. In those cases, the two parties are expected to settle their difference out of court, perhaps without a law suit. The courts are available to decide the case if the parties cannot agree, but that takes up time in court and costs big money. Not only does it cost each party, but it cost the taxpayer money to operate the court system. The courts are over loaded now, even though only a small number of potential cases goes to trial.

Some cases, particularly those involving interpretation of a law, should go to court and should be heard at the appellate level in order to "make law". Other cases, the vast majority, should be settled by the parties.

Bob

 

this is not a solicitation for business.

---

Those are really the cases I am referring too, the ones involving interpretation of the laws.

I've also been through "Court ordered arbitration" in a probate case.  Someone produced some documents of questionable origin with some confusing language: the Attorney who had drafted them shortly after had been convicted of a Federal Felony  (mail fraud) and had been disbarred for actions in another case. 

Arbitration is good but yes, sometimes you still can't get people to agree.

[Marybeth Cooperstone]

Perrie,

Fortunately I have not had anything to do with insurance law, so I didn't draft the one you had a problem with..

The case you wrote about is one that should go to court if there was really a problem interpreting the law, rather than an insurance company thinking that you will settle rather than fight. (In which case you might still have to go to court). If a court interpretation is needed, it would be best for it to be heard at the appellate level. (appeals courts do not deal with decisions about facts, they defer to the lower court. But they will make decisions about the law and interpretation of statutes. These decisions are binding on lower courts. The fact that the insurance company would settle without an appeal tells me something. Perhaps they knew they would lose.

But interpretation of laws is the business of our court system that unfortunately gets bogged down with cases that should be settled out of court.

Marybeth

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disclaimer: the above should not be considered legal advice and, by posting it, I am not soliciting business.

[Perrie Juran]

I've been intentionally avoiding getting into details for brevities sake and I don't want to rehash the whole thing so I know I am leaving a lot of unexplained facts out.   My apologies for that.