For Ginsu: DMCA education?

Dear Ginsu.

As LL's resident legal eagle, perhaps you could edu-mi-cate us (or at least me) on a few things. A lot of people are making a big stink about things like texture theft, plagiarized content, "DMCA is useless!" and "Linden Lab won't do anything!" these days but few actualy seem to know what they're talking about or have done their homework.

I'll try to break it down into the salient points, though feel free to add anything else that's important:

What is LL legaly obligated to do when they recieve a DMCA takedown notice?

What are they obligated to do if examination of the DMCA takedown claim leads to clear evidence of infringement? What if the evidence is not so clear?

Why and how is this better than filing abuse reports?

People are claiming that the DMCA is useless for Residents outside the USA. Are they correct or sadly misinformed?

Once, someone I was talking to who was trying to fill out a DMCA form complained that they needed the real life info of the person they were filing the takedown against. Is it really required to be valid or can LL deal with it regardless?

Does the DMCA only apply to IP theft or can it also apply to cases where a licence agreement has been breached (i.e.: selling freebies, stuff that their creator released for free (as in beer) and full permissions on the condition that they remain so)?

Are there any assets or identifying devices (original files, watermarks and other digital signatures, comparison screenshots, etc) that are usefull to keep and submity with a DMCA takedown as proof they are the creator? Is there anything else people can do to provide such proof?

Is a DMCA filing really so hard or complicated for the average person (i.e.: someone capable of writing coherent English sentences and paragraphs, able to provide all the relivant information and without profesional legal aid) to fill out?

Does LL get flooded with DMCA takedown notices all the time, are they a rare occurance or is it somewhere in between?

(Edit: Thanks for the link, Torley, that page has been fleshed out a lot since I last saw it).

Dear Elle, you already know this, but as a precursor for anyone who doesn't, our DMCA: Digital Millennium Copyright Act information page is right here and has a FAQ at the bottom:

http://secondlife.com/corporate/dmca.php

and of course I will let Ginsu know about this right now.

First of all, thank you very much for your well-written post and thoughtful questions. Let me try my best to answer them:


From our point of view, the takedown and restoration provisions of the DMCA operate through an incentive mechanism called "safe harbor" rather than the punitive measures of obligation. One way to think about this is to start from an assumption (not always true) that an online service provider has liability for the content on its service that is posted by others. If the online service provider follows the provisions of the DMCA, the assumption (again, not always true) will be that the party that posted the content has liability for such posting. Further, if the copyright owner alleging infringement does not follow the provisions of the DMCA, then, again, the assumption will be that the online service provider is not liable for the allegedly infringing content.

So, if the service provider receives a DMCA notification with the required elements, the service provider has a choice: (1) take down the content and avail itself of the safe harbor, or (2) leave the content in place but accept that the service provider might be liable if the content infringes.

With very rare exceptions, Linden Lab has chosen (1). Generally, to date we have taken choice (2) only when the attempted notification clearly has nothing to do with copyright claims.


This is very important to understand: There is virtually no examination of the substantive claim in the DMCA process. To the extent that there is any examination, it is generally limited to trying to determine whether the attempted notification even addresses a copyright issue at all. As noted above, if the attempted notification does not address a copyright issue, the DMCA process is not helpful and not followed. (The attempted filer is informed that the notice is ineffective and why.)

A good follow-up question is, "Why doesn't Linden Lab review the substance of the copyright claim? Can't you just compare two files and decide who wins and who loses?" The "problem" here is that copyrights exist in the real world and must be determined by real-world systems. The fact that someone created, say, a graphic file does not determine whether or not that person has a copyright in the material depicted. To properly review a copyright claim, the following questions, at minimum, must be addressed:

- Is the material copyrightable?
- Does the complainant hold a copyright in the material?
- Does the alleged infringer have the right to use the material, whether by explicit or implied license or fair use or any other argument?

These are not questions that can be addressed by a simple comparison of two files, and there are many more variations and complex questions that may be relevant. In a sense, the difficulty here is due to the fact that content creators in Second Life have meaningful copyrights in their content. If Second Life were like many other online environments, then Linden Lab would simply demand ownership of all content on the service - then Linden Lab could settle all disputes in-world as the presumptive owner of all content. Since Linden Lab does not own the content, any attempt by Linden Lab to settle a copyright dispute would not finally settle the matter - the disputants still have the rights they have in the real world, they could go to real world courts, which would then force Linden Lab to abide by the decision of the courts.

I'll say this again because it is the most important point: the copyrights that content creators have in their content are real-world rights. Real-world systems are required to adjudicate the outcome of real-world rights. Linden Lab will not make an in-world adjudication of copyright disputes because (1) it is not possible to maintain the staff required to provide the necessary copyright expertise to review the millions of objects in Second Life, and (2) even if we had the staff, they could not provide final resolution of copyright matters because they would not and could not be judges authorized by the law to adjudicate copyright disputes.


Abuse reports are used to address matters that happen in-world. The DMCA process is a real-world process that is designed to address real-world issues, as explained above. I wouldn't say one is better or worse than the other, just that you should use the appropriate reporting method to address the appropriate issue.


Linden Lab is based in the United States, and U.S. law applies to our services. We will follow the DMCA process with respect to copyright matters regardless of where the disputants reside, because we want to comply with the law that applies to us.


Real life info of the alleged infringer is not required. (Although note that the notification must be filed by a real life person.) The information required is posted at http://secondlife.com/corporate/dmca.php - if you haven't visited that page in a while, please do so, as it was recently updated, including a FAQ. (Unfortunately I didn't receive these questions before the update, or I could have included some in the posted FAQ.)


The DMCA applies only to copyright disputes - but sometimes breaches of agreements involve copyright infringement, sometimes not. Many actions that are commonly described as “theft” in Second Life do involve allegations of copyright infringement, but some do not. I understand that this can be confusing, and unfortunately it’s not easy for me to lay out clear rules here to help you determine whether a matter involves potential copyright infringement or not. However, I can suggest that in thinking about the nature of any particular dispute, there is a difference between a violation of an intellectual property right and a permissions exploit or error. If you wish to report a permissions exploit, that is a technical matter involving the Second Life product, and should be reported through AR or bug reporting or similar support channels. If you wish to allege copyright infringement, you should use the DMCA process. It is possible for a matter to involve a permissions exploit but not a copyright violation, or vice versa, and it is also possible for a matter to involve both.


Since the DMCA process is not primarily about substantive review of copyrights, “proof” of infringement is not required. In fact, it can be very difficult to review DMCA notifications if extraneous information is submitted, so if you wish to expedite the review of your notification, you would not submit any information other than the items that are specifically enumerated on http://secondlife.com/corporate/dmca.php. That said, screenshots can be helpful to properly identify the materials in question – but this is for mere identification, not proof.


Well, this is a matter of pure opinion: I don’t think it’s hard at all. I think it’s significantly easier than, for example, a driver’s license test. I think the instructions on http://secondlife.com/corporate/dmca.php are very clear. I think the process is a very low barrier for anyone who really cares about their copyrights.

But I really can’t judge how hard it is for anyone else. The thing is, even though the DMCA process is not hard to follow, copyrights are hard to understand. The difficulty here is not the DMCA process, but that copyright law is complex, and many subtle factors can affect the validity of any copyright claim.

As always with legal matters, if you are uncertain of how your legal rights are affected, you should consult a competent legal professional. I should note that none of this post is legal advice to you – since I am Linden Lab’s attorney and not yours, I cannot provide you with legal advice.


It’s somewhere in between. This is perhaps a good place for me to note that, to my knowledge, we have responded to every properly filed DMCA notification that we have received, and even when we receive defective notifications, we generally try to help the filer understand how to file a proper notification. I have heard many claims to the effect that “Linden Lab ignores DMCA notifications” – in my view this is blatantly untrue, and I have personally investigated many situations when a person claims their filing was ignored. If any person tells you that we have ignored their DMCA notification, I encourage you to ask them the following questions: (1) did they follow the instructions posted at http://secondlife.com/corporate/dmca.php? (2) what date did they file the notification? (3) can they produce a copy of the filed notification? Anyone who believes their DMCA notification is not being handled properly may contact me at [email]ginsu@lindenlab.com[/email] or 415-243-9000 x353.

Again, thank you for your thoughtful questions, and sorry for the loooong post in reply.