Privacy and Protection, Virtual World Platforms

Decoding the Blue Mars Terms of Service

Following the recent (and vibrant) discussions of intellectual property and license rights in Second Life, and this week’s announcements about Blue Mars, I thought I’d take a look at the Blue Mars terms of service.

First, I should not that I don’t personally believe that Blue Mars is a competitor to Second Life. It’s better thought of as an MMO development platform and is more comparable to Sony’s Home than SL or OpenSim. Its architecture depends on heavy and time-consuming downloads in order to provide a more controlled experience for users which provides a visually compelling experience, allows a large number of avatars to be in the space at one time (there is little ‘real time rendering’, so more of the pipe can be reserved for avatars), but is also a barrier to entry which will be intriguing to track.

This isn’t to say Blue Mars doesn’t compete for user’s time and attention. More to the point, it competes for content creators, and with design tools that are still clunky at best, you need to have some patience if your expectation is to rez a house in Blue Mars (not to mention needing to first be an approved developer).

I applaud Blue Mars: it’s bringing to the Web the kinds of experiences you can usually only get from the big game companies who pour millions into MMOs or console games. For simulations and rich educational experiences and for casual entertainment it has deep potential. I first saw Blue Mars at the Virtual Worlds Expo in 2007, and while it has had a hard time delivering on the deadlines it publicly promised, that’s not unexpected, and it’s showing signs of gaining interest and platform stability. I personally think they need to hire a decent user experience engineer, but I’ll leave that for another post.

So with Blue Mars offering more controlled experiences than more open virtual world platforms, its challenge is to overcome ‘download fear’ – to promise compelling experiences at the other end of the 45 minute ‘world download’. To do so, it needs content creators – and not just casual ones, but companies willing to pour fairly significant resources into “mini-worlds”. And this is where I liken it more to a console than a virtual world: like X-Box or Playstation, the technology is important, but the relationships with developers more so.

For the “professional class” content developers in Second Life, this has been an appeal of Blue Mars, because it offers everyone the chance to build and manage their own individual worlds under the broader banner of Blue Mars. You can worry about the environment and its interactions, and let Avatar Reality manage the hosting and technology. And to make this happen, Blue Mars set up a terms of service which is heavy on IP protection while users are there primarily to, well, behave and enjoy themselves, at least insofar as they defined their legal framework.

Rights to Content
When you build something for Blue Mars you MOSTLY build it external to the platform using standard industry design tools like 3DS, Maya, Blender or even Google’s Sketch-Up. Thus, the content you bring in is your own, and the Blue Mars Terms of Service (TOS) acknowledges this:

Avatar Reality acknowledges and agrees that to the extent you have such rights under applicable law, and subject to the terms and conditions of this Agreement, you retain any and all applicable (a) copyright rights, including, without limitation, copyright rights in Content you create in and/or upload to Blue Mars, (b) trademark rights, including, without limitation, rights in trademarks, service marks, and other identifiers you create in and/or use in Blue Mars, (c) patent rights resulting from inventions you create in and/or use in Blue Mars, and (d) any and all other intellectual property rights with respect to Content you create in and/or upload to Blue Mars.

With rights in hand, the responsibility for ensuring those rights rests with the content owner. Your obligations for the protection of that content are, well, your own. The TOS reminds you that you’re responsible for enforcing your rights, understanding your rights, and holding Avatar Reality harmless from their enforcement.

The TOS asks you to acknowledge that people WILL try to rip your stuff and you acknowledge that Avatar Reality can’t do anything about it, although they may implement procedures to try:

5.3.4 third parties may attempt to circumvent any procedures and/or features designed to inhibit misuse of your Content and/or infringement of your intellectual property rights, and that Avatar Reality is not responsible for such misuse of your Content or infringement of your intellectual property rights, whether or not Avatar Reality creates procedures and/or features to inhibit such misuse and/or infringement;

5.3.5 that Avatar Reality may implement procedures and/or features designed to inhibit misuse of your Content without incurring any future obligation to create or maintain, or past or future liability for any failure to create or maintain, any such procedures and/or features.

Now, you don’t own the underlying code of Blue Mars, of course, this just covers the stuff you make, and there’s lots of other coverage for their service, disallowing de-compiling of source code, or using alternate viewers, that kind of thing. But at the end of the day, if you’re a content creator the TOS says that the ’stuff’ you make is your own, you’re letting them display it, and you’re responsible for your own enforcement.

Enforcement
The TOS covers both copyright and trademark infringement procedures. One of the things I find incredibly reassuring about their notification procedures is that YES, you do get to know who filed a claim against you. In Second Life, if someone files a take down notice against you, you do NOT get to know who filed the claim. This has always struck me as an absurd system: someone can file a false claim and you don’t even know who did it. It’s like standing trial and not knowing whose store it was you supposedly robbed.

While Second Life was built on the concept of anonymity and may be the main argument against revealing the claimant, this creates a very low barrier to filing, one that’s open to misuse. I’ve long believed that we can hold identity in proxy, however, and at the very least you should know the avatar name of the person making the claim.

Blue Mars allows you to file copyright and trademark infringement notices but it allows the person being filed against to both know who filed the claim and to file a counterclaim. The procedures are currently handled via e-mail and are outlined in a separate claims procedure document. These procedures require that you use your real life name, address and signature.

User Rights and Privacy
Users of Blue Mars enjoy, well, limited rights. There’s no avatar Bill of Rights like Metaplace. And there are no ‘Community Standards’ like in Second Life. Instead, users are faced with a list of prohibitions. 20 of them. The following, however, is the main definition of the behavior that’s expected of users (emphasis added) which asks that you not:

10.3 Publish, post, upload, transmit, distribute, disseminate or otherwise make available any material that is harmful, abusive, defamatory, libelous, obscene, infringing, embarrassing, unwanted, invasive of another’s right of privacy or publicity, hateful or racially, ethnically or otherwise offensive or objectionable.

The TOS is silent on the issue of how abuse reports are handled, your recourse, or whether there are variants in how enforcement is handled (temporary suspension, warnings, or banning) other than the block cap proviso:

YOU UNDERSTAND AND AGREE THAT Avatar Reality MAY, AT ITS SOLE DISCRETION AND AT ANY TIME, TERMINATE AND/OR SUSPEND YOUR BLUE MARS ACCOUNT FOR ANY REASON OR NO REASON, INCLUDING BUT NOT LIMITED TO FOR VIOLATION OF THESE TERMS OF SERVICE OR VIOLATION OF ANY OTHER PUBLISHED POLICY RELATED TO THE BLUE MARS SERVICES, WITH OR WITHOUT NOTICE TO YOU. YOU AGREE THAT AVATAR REALITY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SUCH TERMINATION AND/OR SUSPENSION. IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED, YOU WILL HAVE NO FURTHER ACCESS TO THE BLUE MARS SERVICES AND YOU WILL NOT RECEIVE ANY REFUND OR REIMBURSEMENT FOR ANY CONTENT (AS DEFINED BELOW) AND/OR BLUE MARS DOLLARS CURRENCY BALANCE ASSOCIATED WITH YOUR ACCOUNT, EXCEPT AS EXPRESSLY SET FORTH BY AVATAR REALITY IN WRITING.

This term would seem to cover both the ‘casual user’ and the content creator.

Intriguingly, the list of prohibitions is also silent on issues that have been either contentious or otherwise covered by other virtual world platforms. It makes no mention of alts or adult-oriented content, although previously Avatar Reality had said that adult content was not going to be permitted, at least during the original phases of development.

But I find it more intriguing to consider Raph Koster’s Declaration of the Rights of Avatars and to interpret the TOS against that or, at the very least, to consider whether Raph’s notion that platform owners THEMSELVES should have limitations to their rights is in effect on Blue Mars.

Where the TOS is silent on this issue is the difference between the platform and the individual worlds. What might be permissible on Blue Mars Caledon might not be on Blue Mars Loco Pocos. How individual worlds will manage their communities against the TOS is not outlined in the TOS.

Blue Mars Branding
Finally, taking another lesson from Second Life, which tightened up the use of the SL brand by issuing often contentious take-down notices to people who were using the name in blogs or other materials, Blue Mars precludes the use of the brand in domain names (BlueMarsDanceClub.com is not allowed, for example, although DanceClub.com/onBlueMars is).

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