Copied Content Creators Fighting Back

I'm not sure where you get the notion that a lack of a EULA provided /before/ purchase renders copyright law null and void?

The Berne Convention* was created to create a world-wide standard for esablishment and mutual enforcement of copyright. Reading the treaty itself will likely cause insanity (as do most treaties) but the relevant summary is:Note in the referenced article how very few nations are not Berne signatories.

*http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

I wanted to address some of the common misconceptions about copyright law brought up by Gaybot. Please note I am NOT a lawyer, so this is not a substitute for legal advice. I am however a librarian, and copyright is a MAJOR topic of discussion in our circles -- we do a lot of copying and distributing of copyrighted materials, and must be very aware of the rather blurry line between fair use and copyright violation. In addition to ongoing discussion on the topic in librarian circles, I have also attended three 2-4 hour seminars on the topic, so I do have above average knowledge in the area.

Some things to note:
- The discussion below concerns only U.S. copyright law.

- "Fair use" is an exception that allows copying without permission in certain circumstances.

- "In good faith" is a term that means the user reasonably believed they were complying with the law. If found to be in violation, they are usually told to stop, but not actually punished (although they may have to pay restitution if financial damages were incurred, and perhaps legal costs, which is probably punishment enough).

- Items in the "public domain" can be copied and distributed at will, without permissions from anyone. Items fall into the public domain when their copyright expires. Items created by U.S. government employees in the course of their work never receive copyright, and immediately become public domain (this may disputed in the case of contractors, if the contract does not specify).

- U.S. copyright law currently treats electronic files differently than other types of materials, with less exception for fair use and more severe penalties for violation. Many consider this additional protection to be unfair, and the tighter restrictions are being tested in the courts.

- Using an exploit to gain permissions not normally allowed by the technology is specifically outlawed by the DMCA, making even normally fair use illegal (such as backing up your copy-protected DVDs). Again, with regard to fair use, this is being challenged in the courts. Nevertheless, using an exploit to produce copies for sale/redistribution would be considered flat out violation, and can be punished fairly severely.

- I only know about copyright law. Other types of intellectual property law, such as patent or trademark, have different applications, time limits, and penalties.

Now to address the specific points:


Copyright is about creative output, not physical ownership. The intellectual property is owned by the creator regardless of who owns what it is on (unless otherwise agreed upon by the creator, or considered a "work for hire".


Registration is a way to document you created something, but it is not required. In the past copyright applied when a copyright mark was added -- the (C), the year, and the name of the copyright holder -- but even this is no longer required. Now copyright applies immediately upon creation, even if not marked or registered.

Copyright law applies to many kinds of creative output (not just words), but not all. I don't remember the law specifying what is and is not covered, but these things have been worked out over time in the courts. Things I think may not be covered (not sure though): individual recipes, the appearance of a typeface, architectural design. Strangely, the simple act of formatting text and making a PDF can give someone copyright protection over that PDF (meaning publishers have rights to a PDF containing nothing but public domain content... although the content itself stays public domain).

Copyright used to have a time limit, something like 25 or 50 years, with a possibility to renew at some point. Now it extends to the death of the creator plus a certain amount, something like 50 or 75 years. (Sorry, don't remember the exact time periods, but the point is that it now covers the creator's life plus a few generations of heirs.)


If you are talking about the guy who rigged the auctions to get land for cheap, that is an entirely different matter. LL was auctioning off rights to use their servers, which is not an intellectual property issue.

My understanding of the TOS is that it states IP (intellectual property) owners RETAIN their IP rights. Unless it explicitly states otherwise, copyright would stay with the creator.

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And a comment on the issue mentioned by Phedre:


Lack of a EULA would not void copyrights. However, in the absence of one, the permissions on an object could in good faith be considered the equivalent. This is why texture sellers and other full-perm providers must have the EULA (readable before purchase), because otherwise they are specifically allowing copy-and-selling.

One could also argue standard practice or fair use on some things not specifically allowed. An example is the EULA from a certain clothes/skin seller (which is only viewable after non-returnable purchase, and therefore probably void)... it is worded to suggest that you may not post pictures of your av on the web while wearing their skins or clothes. Although it's true nothing in the SL client specifically gives permission to post pictures of other people's content on the web, it is such a common practice that one can assume in good faith that the practice falls under the fair use exception. If challenged the courts might decide otherwise, but the violator would most likely receive no penalties, only a take-down order and injunction against future posting.

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Okay, enough copyright talk for me this morning!

I bought a Chair some time ago, Nice plush antique type. The style was great, but the texturing didn't fit my Decore. It was no Mod, But i found i was able, through an editing loophole option to See the Settings for Each Individual prim in the Chair, So, i Rebuilt it using the original as my Model. After doing this i retextured it to my tastes. That's the naughty part, The Good bit is this; I have never, and will never make my redesign available for take, or sale. I Gave Full perm Copies to the original creator so she can add them to her sales inventory, and sent her a note with my assurances that Her property remains hers. My Labour in doing the retexture Paid for the few Chairs that i created for my own personal use. I think any revenues she gains from selling my retextured Chair will adaquately compensate her for the Altered version i made.

Some people feel that Taking someone elses design, and making a minor Change to it makes it theirs. I don't agree. That Chair design was the Creators property by Right. The fact i found what could be called an Exploit (isn't really, it's just the way builds are) Doesn't Give me the right to Claim what isn't mine.

Angel.

Very good point, Angel. What you are talking about is "derivative work". Only a copyright holder may authorize derivative works based on their copyrighted work. If authorized, a new copyright may or may not attach to the new work depending on how much original material in contains.

Silly question, but isn't furniture generally subject to a design patent rather than actual copyright?

Assume (like in Angelique's example) that someone copies (exactly or by eyeballing it) a design for a functional (unscripted) item (bed, chair, etc) but uses their own textures. Did they violate copyright or not?

Contract and sale of goods laws will step in, though. The buyer can argue they were misled into purchasing because they didn't know the EULA terms at that time.

Short answer: I don't know.

In RL I've never heard of the structure of furniture being copyrighted. (And patents are something I know next to nothing about.)

But SL is not real life. Furniture in SL is not considered furniture in the eyes of the law. I would expect the structure of it (the shape without scripting, animations, or textures) would be considered the same as any other 3D model. I have no idea what the case law is regarding 3D models, but I'm guessing something has to be relatively complex and non-obvious before copyright applies. So the construction of my one room cabin with a door and two windows, probably not copyrightable, but maybe a 32-bedroom mansion of original design would be (maybe... I really don't know). Perhaps only the very specific measurements are copyrighted, but the overall design is not (so you could imitate, but not exactly reproduce)?

The thing that would definitely be copyrightable is the original electronic file (aka SL object) itself. The exploit under discussion actually causes copies of the original object to be made, which is entirely different from rebuilding something from scratch.

Yes, I Understand the Law of it, But i also felt, and feel a Moral Obligation as well. She used some prims in a way that never occurred to me before, Quite Clever really. She deserves Full benefit of her design, I wouldn't think of trying to take it from her.

A Couple of Years back, a fellow created these Very Clever Dance spheres using a Strange texture conflict that Occurs when texturing hollow spheres and Cylinders. Ok, Most people by Now probably Know how to do it, but when they first hit the Market, they were VERY Unique. The Creator Let me, and a friend of mine In on his secret, because we wanted custom colours of our own, and also, we wanted to use the Effect on some Unrelated builds. When he told us the secret of their creation, it was with the understanding that A: We would NOT tell ANYONE else how the trick was done, and B: We would not market ANYTHING resembling his line of products. My friend and i kept our word, and Didn't pass the secret on Until it was Obvious that Many other people had discovered it, and it was in Effect no longer a secret. We never did market anything using the texture trick, We just wanted to know it for our own use, and that never changed.

Laws are a wonderful thing, But one rarely brushes up against them when one has a Strong Ethical base. Funny how that works out.

Angel.

It isn't a silly question, even the US Patent and Trademark Office seems a bit vague on the matter*:which puts RL furniture into possibly both categories. As far as SL furniture goes, it would hinge on the definition of "article of manufacture". So far I've hunted that definition to 1890, which probably didn't envision virtual furniture at that time. I post anything more definitive if I can find it.

*http://www.uspto.gov/web/offices/pac/design/definition.html

IP law as it applies to furniture boggles the snot out of me, to be honest.

Unfortunately with the recent invention and ever expanding concept of "Intellectual Property", even a person of Strong Ethics can have their intuitions befuddled.

As in the case of Herman Miller and his displeasure with the makers of "knock-off" Aeron chairs in SL*. It seems pretty clear that this cannot be a functional patent issue as SL couldn't functionally replicate an Aeron. I'm sitting on an Aeron right now which is devoid of conventional trademarks (e.g. the SL logo, the Levi's red tag) but wait, the Coca-Cola and Heinz Ketchup bottles are trademarks by their very shape, is this what Miller is claiming? Take the bottomost inward curve off a Coke bottle and it isn't a Coke bottle any longer.

Please don't take this to mean that I think Miller has no rights to his very elegant and novel designs. I think he ought, but in which realms and for what purposes and to what degree of difference should these rights extend? I don't know and I don't think anyone really does. Miller also seems to be marketing SL products following the designs of Charles and Ray Eames, some of which are novel and iconic, some really stretch the concept of obviousness, like this Eames table.



I consider myself a strongly ethical person with an artist's interest in copyright protection. I am also confused by the current state of Intellectual Property law. Can I sample Queen & Bowie's "Under Pressure" in my song, if so, how much? And if the answer is "none" then half of the world's Jazz music would have to be thrown away. Muddy waters, indeed.

As I've questioned Miller's rights, I feel it only fair to say: do visit the sim Avalon to see his wares and Rivers Run Red's stunning presentation of these goods. It is definitely worth a look.

*http://techdirt.com/articles/20071010/003145.shtml

This is simple: Read the Terms of Service. According to the TOS no user owns ANYTHING within SECOND LIFE. Creators are NOT an exception. You gave up your rights to ownership when YOU checked that box.

Under UK law (I did a class on it) I believe furniture typically comes under patent, or tries to. Patents are notoriously difficult to get in the UK while in the US they hand them out fairly readily by comparison.

I'm not sure anything in SL would be viable for patent protection though, it's very, very difficult to apply a patent to software, and it's also very costly. You only apply for a patent if you think it will lose you MORE money to have your competitors using the same patented technique, or if you expect enough people to infringe it that you can the money back in legal action.

I dont class myself as a designer..... but i do create content on SL, some of it inspired by others in SL but a LOT more inspired by the RL counterparts of what i make. I think that on many occasions we give out selves more artistic licence than what we give others.

If we create the textures and I MEAN create ... not upload a picture, and apply a build on something we have created or applied an adaptation of then we stand a chance of saying "YES!!!! this is MY product", I know I have seen some pretty big names in clothing passing off "photo source" as thier stuff.......

I personally think MOST people in SL allow a small part of replication especially if their original source is less than "self created" but blatent rip offs is another thing.

If somebody makes a sofa similar as another but sells it as there sofa then fair enough, if somebody steals the actually inventory item and resells I guess this is a copywrite issue but I would also offer the advice that make sure your stuff is as licenced to use becasue LL have said previously about DMCA etc ... i for one havnt got a clue

Without challenging the TOS, patents are semi-worthless inside of SL: there's a portion of the TOS where you automatically granted LL and all residents a license to any patent you may own on SL content that you made and you agreed that you can't sue anyone for patent infringement taking place inside SL in general.

I'm not sure how that would stand up in court, but as written it's pretty broad.

Section 3.2 of the TOS, titled: "3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life."

It appears the TOS does not say what you think it says, but perhaps I'm missing something. Can you cite the section that says creators do NOT retain their intellectual property rights?

The carveouts regarding ownership in Second Life relate to ownership of the actual virtual objects, virtual land and Linden currency, not images, ideas and words that are covered by copyright, or for that matter, patents or trademark. Essentially Linden Lab is stating that one has no right to access the server and if all of one's virtual creations, all of one's land, and all of one's Linden Dollars were to go poof overnight one would have no recourse against Linden Lab for the loss (which is a little scary when you think of how much some of the people have invested in Second Life in the aformentioned virtual assets).

As Ava implied, absent an explicit waiver of IP rights, there is nothing in those terms whereby the creator of IP relegates his or her rights to the same to Linden Lab or anyone else and the LL's policies and PR specifically and explicitly state that the creator retains all IP rights as well.

I'm curious to see his claim too. I kind of doubt such a clause would exist.

READ THE fine PRINT:

Section 3.2 of the TOS "...you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life..."

Allow me to break this down as I see it. Let's see this as the REAL WORLD non SL jury/judge will see it, ok?

1. The defendents lawyer will present SL as a VIDEO GAME setting the judge/jury up to see this entire case as unimportant.

2. The lawyer will argue that NO "c" for copyright was EVER shown, nor Trademarks, nor "check this for agreement" BEFORE a purchase was made by the defendent.

3. The defendent who is the age of most judge/jury's children will be shown to be a young man, simply playing a game...figuring out a way to duplicate items for this game.

4 It will be made clear how fuzzy all these rules are in regard to the TOS, the lack of "C" for Copyright and TM for trademark. "HOW WAS THIS YOUNG MAN SUPPOSED TO KNOW," the defendents attorney may ask.

5. The Plaintiffs will be depicted by the defense as adults who play a video game, claiming implied intellectual property on many things including "SEXUAL ANIMATIONS." At this point the jury will gasp and cry "WHAT ABOUT THE CHILDREN?"

6. Young man found not responsible and plaintiffs activities opened to great scutiny.

Laws ammount to far less than emotion. This is the way the REAL WORLD works. Oh, and uh, if he looks handsome and clean cut the plaintiffs should just forget it now.

Sorry your whole post seems something of a non sequitur to me.

Clause 3.2 means you provide certain licence rights to purchasers of your product. That means if I sell something no copy, and someone copies it on purpose with an exploit it is illegal and against the TOS.

Your points 1, 5 and 6 are just your opinion not law or part of the TOS.

Point 2. As has been pointed out much earlier in the thread the copyright symbol is no longer required. Trademark is a different thing entirely since we are discussing copyright.

Point 3. If the person is over 18 they are considered an adult for the purposes of law. Just being young is not a defence. Of course if the person is under 18, then in theory their parents are responsible (and liable).

It seems like you're the one that should be reading the fine print. If you had you would know that the carveouts with regards to forebearance against users are limited to patents (and only within the context of use within the Second Life).

That is all complete supposition. It is not the real world and your putting it in caps does not make it any more valid or convincing. Any able plaintiff's counsel is going to be able to rebutt all of those arguments and in fact number 5 is unlikely to ever see the light of day over an objection as to relevance and Buchanan Ingersoll is huge in the world of IP litigation. I doubt the defendant is going to be able to afford counsel that would be able to get your fantasy world of television court drama arguments off the ground in a real federal court but believe what you want. :hrugs::

The even finer print:

"...you automatically grant (and you represent and warrant that you have the right to grant) to Linden Lab: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) use, reproduce and distribute your Content within the Service as permitted by you through your interactions on the Service..."

Seriously Warren, the TOS clearly states that creators retain their IP rights. Certain licenses are granted, but ownership of IP is never waived.


Well, I can't deny that your suppositions are how YOU see it, but as many people above have pointed out, how you see it doesn't have much to do with the real world of copyright law. By virtue of the DMCA, electronic content is MORE stringently protected than non-electronic, the "copyright (C)" is not required and hasn't been for years, the young man obviously knew items were protected because he had to use a system exploit to copy them, and to my knowledge copyright cases are usually bench trials (just a judge, no jury).

I don't follow case law very closely, but I can't recall hearing of any cases that went to trial where a copyright holder's rights were dismissed just because the creation itself seemed funny, "adult", or irrelevant. Perhaps you can provide some specific case references to demonstrate your point?

As a real Life design person, copy right is only as strong as the person who created said object. Since as the photo shows (Malachi Petunia) how general can a design be? Well patterns, for one is a a possible copy right. But form is another issues. Since there are basically only 3 basic forms Circle square, and triange how these are changed to fit a form MIGHT be another trade mark factor. But then again you can say " well i came up with this design first " well your wrong. Since the "3" basic forms are NOT copy written anywhere in the known world. I think the biggest mistake LLABs gave creators right was allowing then to create objects with RL trademark names and did not stop them early in the evo of Second Life. ( Now Second Life is full of these types of creators) People coming in to the game because they heard you can build objects and make alot of money. Found out the hardway you can`t make money without first using a brand name to sell. Hence al this IP rights bla bla is just another way for people without any real creative bllod can cry foul.