Testing Improvements to our Intellectual Property Complaint Process

This might be of interest to some:




Above Blog Post:
https://blogs.secondlife.com/community/community/blog/2009/12/09/testing-improvements-to-our-intellectual-property-complaint-process

Avoiding Acquiring Infringing Content FAQ:
http://wiki.secondlife.com/wiki/Linden_Lab_Official:Frequently_Asked_Questions_on_the_IP_Complaint_Process#What_steps_can_I_take_to_make_sure_I_don.E2.80.99t_inadvertently_have_content_that_may_be_infringing.3F


IP Complaint Process FAQ
http://wiki.secondlife.com/wiki/Linden_Lab_Official:Frequently_Asked_Questions_on_the_IP_Complaint_Process


Pilot Progrom FAQ
http://wiki.secondlife.com/wiki/Linden_Lab_Official:Frequently_Asked_Questions_about_the_Pilot_Program_for_Testing_Early_Improvements_to_the_IP_Complaint_Process

A form complaint is replacing the sworn statement?

lol fancy
If those objects are replaced instantly, I'm ready to believe that this is what all of those consecutive server rollouts were about

I suppose someone should make some outfits for which the replacement items will be identical to the original items.

Hmm... I thought LL already did, except those were bugs. THIS is a feature!

I'm of mixed feelings about making it a simple form. I realize this could help those that actually get ripped on a regular basis by greatly speeding up the process. But, you're gonna have some immature twat who will use it to "punish" someone.

In other words, I hope the counter-notice is a simple form too.

So.. Creators do a web form and somebody doing an appeal has to do RL paperwork?

/me really hopes they're requiring some RL creds before they allow people to use the web form.

Does the web form replace filing a DMCA notice through more conventional means?

Is it the legal equivalent of filing a DMCA notice?

Does a person filing a counter-notice have their RL name and address given to the complainant without having the complainant's RL name and address?

Note that I ask these questions without having read any of the linked FAQs.

To be truly and properly amusing, the outfit you make that is identical to the replacement outfit should be made by actually copying, copybotting, etc., the actual replacement items.

This is simply a method to file your DMCA takedown notice in a different medium so it is not the legal equivalent of a DMCA takedown notice, it IS a DMCA takedown notice.

You can still file a DMCA notice in hardcopy and if you fulfill the takedown notice requirements under DMCA, Linden Lab must comply to claim the DMCA safe harbor provision from copyright infringement.

Service providers are not required to disclose the identity of the complainant or the poster of the alleged infringing items to one another under DMCA takedown notice procedures and most service providers will not disclose identity under their privacy policies unless compelled by subpoena. I see no reason why Linden Lab would have a different stance and I personally disfavor disclosure since it is not necessary to file either the notice or the counter notice. DMCA notices procedures are not meant to be some kind of cheap loophole to obtain disclosures one could not otherwise obtain without a subpoena.

I ask that because of the email from Linden Lab that was quoted as saying:


That was in thread
[email]removals@lindenlab.com[/email] has bit my butt
/327/07/353734/1.html

I don't like Linden Lab making it so much easier to file an initial claim. Signing a sworn statement in front of a notary public, after being sworn is, has an air of seriousness about it that would cause potential frivolous claimants to think twice before filing a frivolous claim. An online form doesn't have that serious, and will make it easier for a frivolous claimant to proceeding without appreciation of consequences.

Skimming over a "under penalty of perjury" line just isn't psychologically the same as a live person reading an oath to you.

What I would like to know is how often perjury charges will actually be pursued when frivolous claims are filed. If perjury isn't pursued for false claims, then this will turn into that cheap method of obtaining disclosures of others' real life information.

Here's Cristiano Midnight's spin on the IP Infringement Animation:
http://www.youtube.com/watch?v=sFBFSflJ3-U&feature=youtube_gdata

Honestly, I'm kinda glad I've been scaling back making and selling things. Even though I've always made my own things from scratch (including virtually all of the textures I've used), the whole vibe is just too depressing these days.

Can I file a DMCA against LL for plywood?

I've been making my own clothes and all textures used to make the clothes for about a year now. I also make all my own building textures. I often give my clothing and textures away to friends, sometimes even strangers if they express a desire to have them. Most of the time (since I have no desire to make lindens on things I create and simply like to give someone something if they appreciate it) my stuff is full permissions.......my thinking is limiting someone's ability to do as they please with their property (if I gave it to them, it's theirs) goes against everything I believe as far as a gift is concerned.

Now, it's possible (maybe even probable) someone has taken one or more of my items and claimed for their own, sold or otherwise distributed them in SL..........with their name as creator and changed the perms to no transfer or whatever. Can they hit me with an IP complaint for what is really mine in the first place?

That would piss me off.

Well you learn something new every day. I never checked the legal requirements for a counter notice before but it requires that you consent to service of process by the complainant in order for the counter notice to be honored and your posted content to be restored so you have to provide your real life name and an address for service of process. I still don't agree with it but it's the law.

You are not required to have your statement acknowledged by a notary public under the DMCA and it is not a requirement under Linden Lab's procedures either so there will be no change in this regard if Linden Lab moves forward with an online takedown notice option.

The protection from abuse is that if someone files a fake takedown notice to get real life information they are exposing themselves to liability to monetary damages in a civil lawsuit and account revocation from Linden Lab which will not be easily circumvented because Linden Lab will then have all their real life information. It's up to the individual if they want to pursue the civil suit, but if they do, they would most likely prevail so the only real issues are damages and the ability to collect them.

/me wonders what prompted LL to make these changes --- mmm--- I wonder...

Rock

In other words, there is no real protection from abuse.

Griefer files a complaint against a creator.
LL replace the content complained of.
Creator gets a "Dear Content Thief" from LL and streams of WTFs from customers.
Creator files a counter claim.
LL restore the content.

End of incident.
Griefer has got lulz.
LL might zap the griefer account, but that happens all the time. No big deal at all.


Alternatively, victim gets mad and decides to go after the griefer for "monetary damages in a civil lawsuit".

The victim is an ordinary person of small to moderate means who is paying tier and pocket money from the proceeds of sales in SL. The monetary damages amount to 'not much'.
Somehow they will have to fund the following:

Victim's lawyers get a subpoena to force LL to hand over the RL information that they have on the griefer.
They find that the complainant
- Is named John Doe
- Has an email address of [email]gt87594@gmail.com[/email]
- Has given a postal address of 10036 Luzer Boulevarde, Saispas, Brazil
- Has given a telephone number

Victim's lawyers begin a process to serve civil proceedings. The Brazilian address given turns out to be fictitious.
The telephone number turns out to be a throwaway pay-as-you-go cellphone. Such phones are untraceable. This is why they are used by the criminal fraternity. End of trail.
Victim's lawyers get a subpoena to oblige Google to divulge the IPs used by the person using that gmail address. They might also have obtained IP numbers from LL, saving them that step.
The IPs are open proxies.
Victim's lawyers get subpoenas to oblige the proxy owners in Russia, Zambia and BongoBongoland to divulge the IP numbers that were using their proxy IPs at various dates and times. Those IPs point to an ISP or ISPs in Brazil.
Victims lawyers get subpoenas in Brazil to oblige the local ISPs to divulge what details they have on what/who was connected to certain of their IP numbers on given dates and times.
That identifies a cybercafe in Brazilia, or maybe an insecure WIFI connection. End of trail.



Victim has incurred large legal bills both in their own country, in intermediate countries and in Brazil.
In return they get a big nothing.
They have no protection from abuse.
They can just suck up the pain of their creations being zapped for a few days.
If that enrages them, they can suck up the pain and expense of failed attempts to pursue international civil proceedings.


Or, maybe the victim would be prepared to employ a firm of private detectives in Brazil to track down the griefer.
Perhaps the cybercafe or some nearby establishment had CCTV footage that could narrow down some faces that were in the vicinity at the time of the postings. Perhaps a private detective could live in the cybercafe for a few days and listen out for anyone discussing the lulz they got in SL. etc.


After 12 months, and an expenditure of half the GDP of France, the griefer is identified as a penniless unemployed teenager.


=======================

It would appear that LL are going to make it extremely easy for someone to submit a claim.
They are readying the code for a fast automation of content replacement.
LL have expressed a preference of telephone number or email as a "reasonable method of communication" . A quick check by telephone or email appears to be the only non-automated check between the griefer submitting the form and the content being replaced grid-wide. That check can only be a confirmation that the telephone number/email is responded to by some essentially anonymous person who confirms that they submitted the form.




When I first scanned this blog item, my initial thought was that this form submission was something that would be a purely SL process that could do a reasonability check prior to a formal DMCA process.
What a silly-billy!!

If the form submission *IS* the DMCA claim, then there is no possibility of a reasonability check. I don't think that LL are allowed to exercise any judgement calls when a DMCA comes in.


==========================

Perhaps they could make it so that only PIOF accounts could submit a claim.
They would have to ensure that the payment method at the end of the chain was not one of the anonymous throwaway debit cards

There's a potentially bigger problem than whether the victim can hold the griefer responsible though.

That would seem to suggest that LL will be going after the inventory asset as well.

Since the DMCA or the counter-file require no proof either way you have no way of knowing whether the original DMCA was valid or fake and you have no way of knowing whether the counter-file was valid or fake.

The only safe thing to do is to stop buying at the victim's store because the victim can not offer you any kind of guarantee that they made what they're claiming to have made and so any future purchases may be subject to *poof*'ing as well.

Or worse yet: someone is shopping at what they think is a legitimate store - and in reality it is - and they happen to buy something at the wrong time when the victim was "DMCA griefed" and find that they can't attach what they bought and when they rez it they get told that the item was stolen. Not only are they going to have some serious issues with buying at that store ever again, they're going to be wondering how they can avoid it in the future and find that LL never bothered to make sure that consumers have a way to feel and be safe about what they buy.

Fighting content theft by griefing consumers is never going to work well; particularly since content creators have absolutely no way to show that they did indeed create a single thing in their store and hold all the proper licences for every animation/sculpt/sounds someone else made (and that they were the one to make it).

If content that was assumed to be legitimate starts going *poof* for people then stolen content becomes more and more attractive: you know it'll go *poof* (but then so did those other things they bought so what's new) but at least you don't have to pay for it so you don't loose any money over it; or you paid less.

Yes. My post focussed on the assertion that there was protection in that the victim could pursue the griefer for civil damages and that the griefers account might get zapped.

My "No big deal at all." was intended to refer to "LL might zap the griefer account, but that happens all the time."


It seems clear that LL will automate the replacement of content with placeholders.
But.... the restoration of the content would also be at the press of a button.

The victim's customers get left with plywood and monochrome etc, but it all comes back to normal as soon as the victim files a counter claim. A problem is that the "as soon as" could take a long time.


This online (and essentially anonymous) submission smells of a lawyer driven move for the convenience of major content creators to take quick action against pirating. A lawyer will consider only their client's position - everybody else can get their own lawyers. The reality of the far greater numbers of smaller scale content creators gets no consideration whatever.


How about a stupidity test?

I wonder what would happen if someone filed a claim against Starax??
Would all that sculpture suddenly become basic plywood prims?
Does the DMCA law oblige LL to act on it without being able to do anything more than getting a response to a phone call or email? Does it even require them to do that check?
Does it even permit them to exercise any judgement call if a claim is submitted?

A counter claim isn't proof though, even a content thief can counterfile and get their copies restored.

If a seller is hit with a DMCA you're left with the "there's *something* going on and it's too risky to still buy there" and go elsewhere since the seller has no way to prove to you or anyone else - outside of a court room - that what got removed and restored is indeed their legitimate IP.

I personally wouldn't trust any content creator's claims without some LL backed assurance that their items will be exempt from *poof*'ing. Content theft is rampant, but that includes seemingly legitimate sellers too who often aren't too fussy about trademarks or copyright of the original works they used to make their items.

Just because someone made a plaid skirt and didn't infringe doesn't mean the plaid texture creator didn't lift the original texture from someplace and passed it off as their work.

Or a megaprim creator filing to have all their megaprims removed?

They don't *have to* act on a DMCA. If someone files one and they think it's an outrageous claim then they can just ignore it. They do become liable at that point though so that's one reason why common sense might not apply.

Would it be feasible for the creator to indicate the original item in their own inventory?

If they don't have the original, they have no claim, right?

Could that eliminate the "kill on say-so"?

Yay, more big government solutions to protect the big corporations they are hoping to draw and the patent trolls.

That sounds way too sensible.
A griefer could easily have a clone of the original, but the date stamps and database logs should show which of the copies is older.
What Kitty says sounds right. LL could decide not to act on a DMCA, but they become liable if it turns out that they made the wrong call.

If LL were to exercise some common sense, they could raise the bar for a griefer.


BUT

What about a claim that a texture in-world is a pirated copy of something from outside of SL - for example on a website. It's not difficult to get anonymous freebie hosting and stick up some content - call it shareware or other restrictive license and have the front-end of a PayPal payment system to make it look kosher.
It's not completely entry-level lulz but it is something that a griefer with a bit of time on their hands could do without much bother.

One thing - which is probably the most damaging to begin with - this doesn't deal with at all is content that was obtained through permissions exploits.

Not only is the copy indistinguishable from the original (it *is* the original), but you can't go around replacing the textures or prims on those either without affecting everyone that bought a legitimate copy.

Not at all.

For example, suppose a RL artist creates and sells an original painting (say a watercolor) in an art gallery. Someone else buys it, removes it from the frame, scans it, uploads the digital copy to SL, uses it to texture a painting, and starts selling it as artwork within SL. The original RL artist has every right to file a DMCA take-down notice, even though that artist may never have used SL at all.

Addendum: As suggested in my later post, below, it might be acceptable to use criteria such as this for limiting electronic DMCA notices, requiring others to use snail mail. As I say below, I don't know whether the DMCA would allow for this sort of discrimination in who could submit notices electronically.