SexGen Take-Down order??

From this thread :- /327/8f/200145/3.html

Copyrights are inherent in every original work, and do not require registration to be enforced. Registration makes their existence a lot easier to prove.... it creates a presumption that you are the owner.

This post is copyrighted the moment I press submit.

And trademarks are based on use in commerce, not registration. There are state trademark laws that may offer protection in absence of federal registration. Just because you can't find it on the USPTO website before this summer doesn't mean that he hasn't had a valid trademark for the last three years, if he has been using the name in connection with his business for that much time.

At the risk of being further castigated and reviled, I submit the following for your perusal:

From the SL TOS Section 3.2

You also understand and agree that by submitting your Content to any area of the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to Linden Lab and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your Content, to use your Content for all purposes within the Service. You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else's) patent rights.

Comments?

Is that even possible?

I looked...and I still had a few inches of ass left to get chewed off. *grin*

Patent != Copyright.

It would seem that Copyright=Patent=Useless as long as the TOS basically gives EVERYONE a license to use everyone else's content...and then tells them they can't take any legal action even IF their content is used by another.

This is gonna get ugly.

Err...uglier.

You cannot conflate patent rights and copyright. They are two completely different schemes. It makes sense that placing an unpatented development on SL would grant a license to everyone, as there really is no way to protect the patent from use in the game. Copyright enforcement is a different concept, as the copyright is about control of the distribution of the material. The provision you quoted refers only to patent law. It is not an unqualified, unlimited license to distribute your own copies, which is the purview of copyright.

You're confusing license with trademark or copyright. I have a license to use Microsoft's Office Suite products. That doesn't mean that I have the right to resell it, alter it, use the Microsoft name, and call it my own. It just means I can use it. That's what the TOS says.

I have a license to drive a car. It doesn't mean that I can take my Toyota truck and call it an Oryx truck and make oodles of money off of it.

No, I'm not. If anything I'm confusing trademark/copyright with patent. Licensing rights for media content are directly related to the copyright of that content. In RL I need to secure a number of those licenses to use someone's copyright protected material (a performance license to play some music, a mechanical license to record it, and a synchronization license to link video and audio together, for instance...).

Once you start down this road, the problem of selective enforcement also begins to rear its ugly head. Which is another can of worms.

Again...people who insist on relying on SL to make their fortunes are tap-dancing in a mine field. There are NO guarantees here, implicit or otherwise - and whatever potential "harms" that exist have yet to be quantified in the real world.

It's my feeling that Stroker has a strong Trademark violation case...but damages? I just don't see a clear decision in that area.

When you submit content, people can use it. When I make a shirt in photoshop, bring it in SL, pack it up, and sell it, I am allowing people a "license" to use the shirt for whatever they want, within the SL platform. Do they own the right to do *anythng* they want with the shirt? Not exactly. Inside SL, if I enable mod rights, they can modify it within the SL platform, But extracting the shirt and modifying it outside of SL or otherwise redistrbuting it or hosting it in any place where the files are obtainable by others is infringing on my copyright and outside of the "license" in which they bought the shirt from me. In this, I have every right to file a DMCA take down notice (Provided info on this right here on the secondlife.com webste) or, file any type of claims against the offender via other RL means if LL fails to remove the content when the DMCA is filed. If this paragraph in TOS was saying we give up our copyrights, they wouldn`t even have a DMCA page for us.

This paragraph in the TOS is about patent rights, LL owns the patent right to second life. Patent, copyright, and trademarks/servicemarks are all 3 different things and I think people , like you, are not understanding how the 3 differentiate.

(1) Patent Mark = Protects inventions. I could be wrong but here is an assumed example: LL owns patent to their in-world prim builder, the person who sells prim docker, can not patent it.

(2) Copyright = For protection of original works such as musical compositions, literary works, etc

(3) TM/Service Mark = For protection of brand names, logo art, etc

There are word marks and design marks - the Nike Swoosh, for example, or the Coca-Cola ribbon and font are trademarks of their respective companies. Even the SL hand and eye are trademarks of Linden Research, Inc., and the font/style/arrangement of the words Second Life could be as well (don't know, not looking).

Any original work that is written down/translated onto some media has an inherent copyright. Registration is possible for a wide range of works.

http://copyright.gov/

yeah content you would copyright like when you write an original book

your name and a logo like the nike swirl both are trademarks - the word nike is and the swirl is and they can be used seperately or together

the other issue with trademarks is that the registration date on a site does not necessarily mean that is when it was actualy started to be used as a trademark. You can have a perfectly valid trademark by putting TM behind it for years if you like. Companies register them so others can see they are trademarks but that doesn't mean that widgetpoopy TM without being registered on the sites is not a trademark anymore then registering something officialy as copyrighted is the only proof of official copyright. If you can prove it was yours first blah blah blah for copyright its your IP rights. Trademark the only stipulation to look back on validity is that you put TM at the end of the word or with the symbol so nike and its swirl as long as TM is shown can have operated for 5 years before they actualy registered. People register when they become known and there is a real danger of someone taking the name and making it their own.

So when nike was new and a 3 person company and made shoes for one store they probably didn't register it as a trademark right away they probably waited until nike was obviously a name that would mean something and be associated with something so they could have lived in obscurity for the first couple of years of their existance only using the TM beside the swoosh and the name.

hrm sony produces games that aren't real and totaly fake and they trademark various names and symbols and copyright the rest and on top of it instead of stealing things like the IP rights to use the matrix content and have access to that name they buy it. Yet its all fake. so yeah its amazing how anyone would spend time and money to produce something that costs millions of hours and dollars to produce and then want to protect it. Its equaly amazing how I would want to keep what i make as mine and not have people take my stuff and call it their own. Maybe you dont do any type of artwork but its not nice someone coming along and taking your art, ideas and concepts and calling it their own and claiming credit for the entire package.

I have had this happen to me in real life with a coworker trying to climb a ladder lets just say I was not impressed because what she did when I did all the work and presented it concept and concept art, name, writup and all was express a great deal of disinterest and say no it wouldn't fly and then take my file with all my drawings, the name the writeups and claim it as hers to climb an ivory tower.

Its probably the worste feeling you could possibly have and it happens a lot and its worse in competitive online industry because its very saturated so people grapple over territory. I dont like it when someone takes something that is mine and calls it theirs and everyone gives them the praise and not me. I'm strange like that Ifigure people who did the work should receive the compliments and the recognition they deserve and earned.

But I think the problem is that the claim has been made repeatedly that the trademark was *filed* at Crystal City way back when, but there seems to be no record there that this actually happened. And still, even after the June '07 filing, the claimant and representatives are using the purported Mark in every conceivable permutation of capitalization, without (TM) designation, on the products themselves and in collateral documents and public communications. And there's now a long history of use of the term in-world to refer to a generic product category, with apparently little but some recent DMCA take-down notices to demonstrate intent to protect or even designate the Mark.

This seems a pretty weak claim at this point, but I seriously doubt any defendant's pockets will be deep enough to successfully challenge it--which effectively makes it valid.

As has been demonstrated here, most people don't know what they are talking about. Chances are, they have been advised that the mark has been effective since they started using it, but have some facts and legal concepts messed up. Regardless of the confusion, he still may be afforded protection if he started using it in commerce 3 years ago.The TM is not required. TM only means that you intend to use it as a trademark, but is not determinative of whether or not the mark is valid or effective (e.g., in the case of someone who started use in commerce earlier than you but you didn't know it). I would keep the jury out as to whether or not the term is generic. It takes quite a bit for a term to be considered generic, and the fact that there is plenty of healthy competition in the adult furniture industry that DOESN'T use the term SexGen, it is quite possible that the term is not as generic as you think. My personal, unresearched opinion is that it is not generic and that he is entitled to protection. But that is just my standpoint.

I see what you mean, but I still think Stroker has the edge, on the merits of his argument, and will not diminish that fact by lamenting the fact that it has come to litigation to protect his rights.

The date you file the your trademark with the patent office is not as relevant as the date when you start using the trademark. It was clear from the beginning that Sex-Gen was a brand name/company name and should be considered a trademark. It just doesn't matter when he officially registered it, if he can prove he was using the mark 2 or 3 years ago, that is what counts.

Also, it costs a lot of money to apply to get your trademark registered. I was quoted prices between $700 and $1500 from various lawyers. At that price, it just doesn't make much sense to officially register a trademark for every product/brand name you come up with in SL. Stroker can hardly be blamed for not filing for a trademark the day he first started using the name. I would guess that it is far more common for a small company to start using a particular brand/product/company name first and register the trademark at a later date.

Soo......you believe that art is fake too because it isn't always tangible? It is still sell-able....

It`s only a flat 325$ fee to file a TM with the government, but if you do it wrong and it gets denied, it`s non refundable.

Safest way is to do it through a lawyer if you don`t know what you`re doing, and there`s where the price starts to become what you may consider "a lot of money", they charge you the standard government filing fee of $325 plus whatever fee they want to tack on for doing the paperwork/name search for you. My lawyer charges $350 for a TM filing service... So $675 USD total... Not bad, but the process is definitely something you`d want to put thought in before going through with it. If anyone has a successful business here i`d encourage them to protect their brand asap.

(*prices quoted only for TM`ing on American ground*)

It gets expensive if you are busy trying to ensure its researched properly so your not busy filing for a name 20 other people are waiting for. Research costs etc in canada bring up the total price to close to 2k bucks for a guaranteed trademark that's gonna actualy not get denied. Its pretty expensive because not all the databases are connected and so looking it up on a couple may not bring up the fact that the name is already taken. The canadian/USa linked one isn't bad but stil its a risk.

Right -- the article even argues for trademark rights, while not distinguishing them specifically as "intellectual property laws" which are argued against in general.

Frankly, while that page is interesting reading and a valid point of view, the arguments are pretty easily rebutted. For example, he cites one example where voluntary enforcement worked, but ignored the many thousands of cases where it didn't. We can all find examples where "the right thing happens" without recourse to law. We can also find examples where, without the law, the right thing far too often does NOT happen.

It's well worth reading and food for thought, but far from the last word on the subject.

That's a valid position. However, I draw a distinction between selling items using brand names and replicating brand-name items in SL.

For example, i've recreated my RL musical instruments in SL, and I give them away. The replica of the Martin guitar has the Martin logo on the headstock, because it was in the picture of the guitar that I used as the texture to make it. And it's in the item name, because, well, it is a replica of a Martin guitar. But I don't represent myself as being Martin selling Martin guitars. Instead, I'm the owner of a Martin guitar, distributing virtual replicas of my instrument. I think this is rather like distributing a picture of my guitar.

Legally, I have no defense. If Martin sends me a cease-and-desist letter, I'll comply with all due respect. If they tried to sue for damages, they'd have a pretty hard case to make and not much benefit from it, but it's a risk I run.

There have been some great posts here (sprinkled with some vitriole) I would like to weigh in on a couple of points.

First..indeed...no one likes a lawsuit. I will offer this, we did everything we could to avoid litigation. Pleading, Cease and Desist, AR's, DMCA's and phone calls. Given the amount of evidence and the procedural paths we took, I think that its important to point out that both Volkov Catteneo and Rase Kenzo are still operating with impunity on the SL grid.

If you think LL is going to stand up for your IP...think again. Either they do not have the resources, whether they consider it a civil matter or they are just standing on the sidelines waiting for a court order has yet to be determined. Personally, I am disappointed in their ambivalence towards these matters.

Second, there is an issue of dissolution that has not been discussed here. There is hardly a day that goes by that someone doesnt present a MLP bed to us to be repaired that has been named SexGen. It wastes the time of our staff (who are RL employees, btw) as well as confuses and irritates the original purchaser. We have to take the time to explain that MLP is not SexGen (not even close) and that we cannot help them. The VAST majority of individuals that name their products after our mark do not support them. They do so with the specific intent of capitalizing on our mark. Character goes a long way.

Additionally, and I think this is an important caveat. Unless you ARE a Content Creator, you will never begin to understand the utter sense of violation one feels when you find that someone is exploiting your work. I compare it to the feeling one has when you come home in real life to find that you are the victim of a burglary. (This has happened to me) You feel an overwhelming sense of powerlessness combined with a seething need for vindication. I am always amused at the "Monday Morning Quarterbacks" in these matters, who have never offered anything in the IP realm.

Finally, myself nor my staff are motivated to the degree of anti-trust that some seem to suggest. On the contrary, those that know me and my staff, including the staff of my partner Briggi Bard (in SexGen), know that we have ALWAYS been supportive of other Adult Content Providers. It only stands to reason. We are a niche market and we should all stand together. Are we selective, yes. Are we unapproachable? I hope not. If anyone has ever had a bad expeiernce along these lines..PLEASE contact ME directly.

Competiton is only effective on a level playing field. There is no joy in competing with the very people who steal from you.

We are about to roll out our Affiliate Program soon. This will allow many entrepreneurial individuals to persue an established profit model that doesnt require building/scripting capabilities. I am excited for the potential of this collaborative effort. We embrace capitalism and innovation in an open market.

It doesnt get any more "open" than Second Life. Content is King.

I'm disappointed as well Stroker. I've had textures stolen and watching your situation from the sidelines, I wonder why i should continue fighting for my rights and getting them off world. What bothers me most is that Linden Lab sits back and allows it to happen to it's customers. For me, if LL does this to you...well, GL with your lawsuit and continue to fight the fight. I do wish LL wouldn't have allowed it to get this far.

My single biggest problem with this situation has been the increasing encroachment of RL law into this unreal, digital playground.

You a DJ in SL? Play copywritten music? You're liable to be sued for a violation.

Got any Star Trek textures? Don't let Locutus the Litigator of Borg know about it, Paramount can sue you.

How about that standup cutout of David Hasselhoff (oh...you KNOW you have one)? Guess what? Unauthorized and unlicensed use of someone else's material.

All those gestures, music samples, movie posters, etc. may very well be direct violations of someone's copyright.

And let's revisit Star Trek for a moment....and while we're at it Stargate, Gundam, and comic book superheroes. You like seeing those things in SL...well...guess what? If they're not licensed...then they're violating copyright.

Stroker makes a great point...LL will in no way shape or form stand up for your Intellectual Property rights, other than to say you have them. Instead of crafting a responsible, in-world solution to the problem, they just wait for RL litigation to come along.

But...the wide-reaching impact of this kind of litigation only SEEMS to be positive. Does this make the little guy any safer in-world? Not unless he can afford a legal dept., or an attorney's fees to take the matter to court. Copyright/Trademark and Patent issues are all in the realm of civil torts...there are no "copyright police" you can call on for help. You want satisfaction? Then go sue. That's still going to be your only option.

Sure...if Stroker wins, it establishes a legal precedent...which might make it easier for you to win your claim. But is that what you want to spend your time doing? Paying an attorney, working through depositions, appearing in court, dealing with everything else a lawsuit entails?

Do I hate Stroker? No. Do I resent the intrusion of RL tort law in a place that really did used to be an open, unrestricted market? Yeah. You bet I do.

Once lawyers and RL corporations get the whiff of what's happening in SL...well...it'll be a grim day.

Hope you had a happy Halloween...and enjoyed wearing your Wonder Woman or Batman or Spider Man costume...you horrible, awful content thieves.

Am I being unrealistic?

Take a look at what's been happening with the RIAA/MPAA and their mindless, unceasing and ruthless crackdown on file-sharing.

Then tell me what a great thing it is to have folks like that paying more attention to SL.

And finally...again...I AM a content creator. But I'm NOT a "businessman". If someone pays me a few lindenbux in-world for one of my builds, or pieces of machinima, or photos, then I happily trot off and blow it on a new quad avi. I don't intend to try and make a living here...in an environment where next to NOTHING is guaranteed. When LL no longer has the right to, at their SOLE discretion, wipe everything you have from existence...then and only maybe then, will operating a "business" in Second Life make a hell of a lot of sense.

Until that time comes...I just want to have fun, be creative, and relax. But thanks to situations like this...that looks like it's gonna be a bit more difficult from here on out.