Death from above?

Watch for crackdown and/or more language on the website/software regarding copyright violations. You heard it here first

Before everyone starts screaming about the sky falling, understand that, by this, one has to prove intent to support infringement and also that said intent is supported by active promotion of use that infringes.

'Going beyond mere distribution with knowledge of third-party action' clearly intends to avoid and avert the idea that simply knowing someone is infringing is not, in itself, evidence of wrong-doing.

By way of example -- the game City of Heroes was sued by Marvel and one matter at issue was that simply by virtue of its existing in the marketplace, infringement was made possible.

The courts rejected this, stating that (in essence) technology that makes infringement possible is not the same as actively promoting or fostering infringement.

This has not changed with this decision. This decision simply refines the matter and underscores that examples like the above are not liable.

By way of counter-example -- the P2P networks this item targets very clearly and very actively promote infringement. They also have a history of failing to act when infringement has been demonstrated. This latter constitutes fostering infringement.

A company today would be in trouble faster for failing to remedy infringement when it is demonstrated to be present than anything.

I know! Pretty soon they'll be declaring VCRs, Tape Recorders, and teh interwebs as illegal because the incite people to pirate.

It's not, of course, *cough*overpriced, low-quality product from the music industry*cough*.

So, we lost seperation between Chuch and State, and now we're losing seperation between State and Corporations.

That's it, I'm moving to a country where I can get FTTP and cheap housemaids.

===
Held: One who distributes a device with the object of promoting its use
to infringe copyright, as shown by clear expression or other affirmative
steps taken to foster infringement, going beyond mere distribution
with knowledge of third-party action, is liable for the resulting
acts of infringement by third parties using the device, regardless of
the device’s lawful uses. Pp. 10–24
===

In case, you know, people missed the important part.

Two posts ahead of you. (Scroll up and read!)

No. The fact that there is a law at all with the words 'device' and 'to infringe copyright' will bring about a torret (haha) of lawsuits.

Consider: Menagerie (30,130), my parcel. Has a kit that I'll do a full post on, called iNfringement. Go load that up ($5 that I can waive), and you'll see what I mean.

Infringement is all these record-prims, clothing labels, tuner cars, etc that make up a good chunk of SL. If some company cared to they COULD ATTEMPT to sue LL for creating an online service. Audio Streams, Quicktime, and Firefox could be consider 'incitement to pirate content'. Granted, in a fair court this wouldn't hold up, but it WOULD be a major pain in the ass for LL.

There is a slight, but important difference between taking someone to court and winning in court.

I have yet to see anyone associated with passing laws understand or much care that many of them are obscenely vague, unenforcable, or downright unconstitutional.

I think this is primarily because most of them are lawyers and it constitutes job security... but I also think this is because most of them write laws based upon their understanding of how things work (e.g., technology in particular of late) and often are misinformed, and finally -- because they rest assured in the knowledge that most people are simply too overwhelmed by the mass of red-tape and the system that supports it to do more than complain.

Once upon a time, I was among a number of highly active persons involved in activism on behalf of the digital domain. It took a particular lawsuit (which we won, actually) to demonstrate to me the futility of it all.

Since then, I tend more toward a grim smile and reminding myself of the truth of things -- you only win in these areas so long as those who make the laws (or those who contribute to their campaigns) want you to... and that is seldomn 'for good'. (no pun intended).

I'll leave it there, as the other thing I gave up when I left off political activism (in any domain) was the believe that, at this point in time, it can ever make a lasting difference.

(How's that for cynical?)

I don't think LL is particular vulnerable to losing a lawsuit, however, they are vulnerable to the fear, uncertainty and doubt this sort of thing generates .. which is why the ruling was so f'ing stupid.

There should be a law against saying things like "Use this to steal software!" rather than a law against writing something that can be used to steal software.

Also, in retrospect, DMCA may provide safe harbor. Doing a google search of DMCA on site:grokster.com and kazaa.com com doesn't bring up anything, which might be why they're in so much trouble.

Well said, Cienna. While the ruling is potnetially subject to dangerous misinterpretation as a precident, as all rulings are, it's highly unlikely it would affect SL. The particular lawsuit in question was against companies who do precisely what the ruling said, which is "distribute a device with the object of promoting its use to infringe copyright." In other words, for a company to get in trouble, it must be arguable that the foremost purpose of their product is to infringe copyright, not just that the product makes infringement possible. Clearly SL has MUCH larger purposes than providing people with ways to copy things they shouldn't.

The ruling goes on in the very next phrase to explain exactly what it takes to be guilty of distributing such an offending device. It says that to be guilty, your intent must be "shown by clear expression or other affirmative steps taken to foster infringement," and that such steps must go "beyond mere distribution with knowledge of third-party action." That means, a device distributer is not guilty if they didn't actively promote their device as a copyright breaker, and they're also not guilty if they happen to know that some people use their device to breach copyright. In short, as long copyright infringement is not what the product was intended for, and as long as the company hasn't encouraged people to use it for that purpose, then they haven't done any wrong.

So, as scary as this looks at first glance, it's actually a fairly concise and sharply pointed ruling, specifically targeting those who are in the business of intentionally supporting massive copyright infringement. It provides a much needed modern counterbalance to the 30+ year old precident concerning betamax players, which until now has served to get guilty companies off the hook. The older ruling basically said that the manufacturer of a product is not responsible for how people use the product, no matter what. The new ruling says, wait a minute, if you tell people to break the law with your product then you're breaking the law too. It's more or less equivilent to laws that say if you tell your friend to kill your neighbor, and he does it, then you're just as guilty of murder as he is.

The very first page of the syllabus explains how the companies named in the suit have directly encouraged their users to breach copyright. LL has never done anything like that, and they never would, so they've got absolutely nothing to worry about.

This is pointed at myself as much as anyone: techies talking about law is almost as funny as lawyers talking about tech.

With the exception of Cienna, who alas, it seems, saw how "sausage was made".

lest anyone think I was maligning Cienna, I was referring to the quote "The less people know about how sausages and laws are made, the better they'll sleep at night."

Well, one possibility is that the courts may start to view software less as a device as whole, but rather the sum of many parts.

So, sure, maybe SL doesn't induce copyright infringment .. but maybe video streaming does given that significant infringement activity occurs with it.

So, the stutios can't sue about SL but rather that particular function in itself, forcing SL to remove the offending functionality.

Possibility, maybe. It's also a possibility that the sky might turn green tomorrow. Both could happen, but they're both pretty remote.

Apple is not in the business of promoting Quicktime as a copyright infringement tool. Neither are any of the other companies that make components of SL. Remember, it's the intent of the distributor that's in question, not the technology itself.

The legal system may seem simple from the outside, but from the inside it is quite complex.

I can't remember a significant project I've ever architected for a company I've worked for that I didn't have to have a sit down with the lawyers to go through and make sure everything was cosher from a liability and IP infringment point of view.

The inducement theory of software has long been sitting before congress, and the supreme court just came down on the side of the supporting it.

From a functional selection / marketing material / investment capital seeking point of view, things have changed for SecondLife whether we like it or not.

SecondLife, as a platform, pays dwell to its users to bring in / create content which attracts users and therefore, as a company, SecondLife profits off (indirectly, but it does) from that content.

When they, for example, post an advertising blurb in the community section about opening up a movie theatre it would not be hard to make a case that they are "inducing" their users to infringe copyrights (when the majority of those movies are all copyright infringements) and therefore are liable according to the recent decision unaminously handed down by the supreme court.

Indeed, but mostly because the average layperson doesn't understand that words have very different meanings under law, and the definition of a term is rarely what a layman would expect it to be, hence the oft and significant misunderstandings about how it works... such as is evidenced by a few in this thread.



Actually it would be very difficult to leap from permitting users to show video and making a case for promoting infringement. Very difficult indeed. One would first have to prove LL intended users to infringe. One would then have to prove they actively promoted infringement. Finally, one would have to prove they actively supported acts of infringement... and note, this does not mean that an infringement happened and they did nothing.... it would only be culpable if there were repeated infringements that are documented to have been reported and they refused on a consistant basis to take action.

I repeat -- the sky is not falling. And even if it were, it wouldn't be falling on LL.

p.s.: Kindly note that 'proof' is one of those words that means something different to the law than to laymen. That is to say, things you might infer to be 'proof' rarely are considered such under definition of law.

A definition of a word was misunderstood here? Which one was that?



You might be right, I wouldn't know. Regardless, this is a straw man, as if you read my example it was not referring to permitting but rather including marketing material encouraging users to open a movie theatre inworld.



Maybe, but rarely is the issue of proof strictly the problem.

Probably 99.9% of all disagreements (probably more) are settled out of court before things have to be 'proved'.

So when grey areas are created, as they were by this ruling, two more issues arise other than what is provable and what is not provable:

1. the issue is less what can be proved but rather what is the probability that either someone will use this amongst an avalanche of other rulings merely to cause grief because you're rocking the boat (copyright infringment is rampant in SL, don't forget that minor detail)

2. is this an indication of things to come? Insane laws regarding DRM are sitting before congress requiring all sorts of things, like any CPU has to have DRM automatically embedded in it. If the supreme court is unaminously siding with the copyright holders against the engines of innovation, then getting venture capital funding in an industry which is tilting at these IP windmills becomes that much harder.

Businesses is about timing. Suddenly, the timing of businesses to be messing around with things that involve copyright violation doesn't look so good.

Umm, yeah. Sure. Whatever. (shaking head)

Sure.


No doubt.


Okay, but I don't see how this relates. Please explain.


Things change in Second Life every day. If you're talking about change stemming from the ruling, I don't think we'll see much if any. Once again, the ruling had to do only with the intent of the distributor, not at all with the technology itself. LL does not support copyright infringement. They do not encourage it. They do not market SL for that purpose. They do not fall under the gavel of that ruling.



No question they benefit from the efforts of content creators. They make no secret of that. They often say that it is we, content creators, who make SL a place people want to come to. That does not however mean that they are promoting copyright infirngement, which is what they'd have to be doing in order for this ruling to affect them. Once again, the ruling said that even if the distributor is aware that some people use their product for copyright infrigement, the distributor is not culpable unless they directly encourage the infringement. Paying dwell to a content creator who may or may not have infriging material on his property does not constitute willful encouragement of said infringement. They reward all and owners equally, based on a universally binding system of traffic patterns. The actual material people can see as they generate those patterns is not part of the equasion.


Not really. As a movie theater owner, I have deeply considered the legal ramifications of showing movies in SL. I firmly believe that showing a movie in SL is no different than inviting people to watch a movie at your house. It is absolutely not a public broadcast. No one who's not on your land can see your movie, and you have total control over who can come in and watch. Your SL home is no more a public space than your RL home.

However, even if that were not the case, LL still couldn't be seen as doing anything wrong by promoting movie theaters. Once again, the question goes to intent. The companies that were ruled against in the case we're talking about were companies who deliberately encouraged their users to break the law. The ruling simply holds them accountable as co-conspirators to the crimes of the people they so encouraged. LL is doing nothing of the kind. They're not saying, "come to SL, open a movie theater, and broadcast illegal movies." They're simply saying that movies and video are one of the features among many that are available. Anyone can subscribe to a legal online movie service such as atomflims.com or movieflix (if movieflix would ever get around to using Quicktime), stream their own home movies, etc. So, for the millionth time, it's all in the intent with which the software is distributed, not in what the software can do.

I agree with all of this, and it's a half full / half empty approach to the problem.

I agree a case could easily be made that SL is not inducing its users to infringe. However, the glass used to be more half full than it was before this judgement came out.

And I base a lot of this on the fact that IP infringement is rampant in SL.

For example there is a user who has over 5 pages in SL Exchange of avatars based on famous movie characters using their names in advertising copy. Both SLExchange.com and SL profit off of this content.

This sort of thing does not make hollywood happy. City of Heros got a lot more lawsuit trouble for as much if not less infringment.

Some may argue that infringement is rampant on the internet as well. Unfortunately, you can't sue the internet. You can sue LindenLabs.

I think the true danger of this ruling is that it may make venture funding more impatient. Whereas before they were happy to wait years and years, and for now they may only be happy to wait years assuming the copyright infringment doesn't get any worse.

Speculation and scarecrowing is fun for some, I guess.

Perhaps, but I don't see it the way you do. The headlines when the ruling was first made public, were way oversimplified, and (deliberately?) hyped to make it sound much scarier than it actually was. As you rightly pointed out earlier, legitimate software developers and service providers have armies of attorneys who break out their magnifing glasses & microscopes to make sure what they're doing is on the up & up every time they do something new. Those people undoubtedly are smart enough to read the actual ruling, and not just the watered down, barely recognizable headline version of it.


You're talking about fan art, which is considered fair use. If you think Tom Cruise is the greatist thing sliced bread, and you paint his portrait, it's YOUR painting, your IP, not his. You have every right to sell it if you want to. I go to trade shows all the time, and there are almost always tons of booths with artists selling celebrity portraits. Selling celebrity avatars is no different.

Just as with the movie theater thing, I've given this very careful consideration, since my primary business in SL is sci fi move & TV show replicas. I sell a lot of character avatars.


City of Heroes wasn't sued by Hollywood. They were sued by Marvel Comics, and Marvel was sooooo in the wrong. More than half of their claims were dismissed without leave to ammend. The judge went so far as to call the claims "false and sham", and also said straight out that the reason the claims were invalid was precisely because the allegedly infringing works were created by users, not by the company. All that even in light of the fact that COH claims ownership of everything its users create inworld underscores a thousand fold the fact that LL, who claims ownership of absolutely nothing inworld, has nothing to worry about from similar lawsuits.



You can sue anyone for anything you can possibly think of. That doesn't mean you'll have a case.


I don't see how. First of all, even if venture capitalists were the types of complete legal dullards who would listen to the initial headlines instead of reading the ruling (which they're not), every moron and his mom from NY to LA is smart enough not to think SL is in the same business as the file sharing services that ruling was pointed at. No potential funder is going to take a daytrip through the SL world and say, "Wait a minute, you've got fans of famous people making portraits, charicatures, and scultpures in here. Someone might be dumb enough to sue you for that. No funds for you." Frankly, they'd be more likely to be concerned about the potential for a slip and fall suit every time the janitor at LL mops the floor.

They're of movie characters, not people actually. When a "Harry Potter" avatar is sold for money, it's a clear violation of copyright, I'm sure.

We'll have some feedback for you in another day or so with our thoughts (and those of our attorneys) on how this decision impacts Second Life, if at all.

Your terms are layman's, but I'll break it down for you as best I can -- If that avatar is 'sold' for RL$, then yes, there could be some liability to LL.

If that avatar is sold for $L, then no, there's no liability for sales as that isn't considered a sale.

Even if those Lindens are cashed out to USD. Unless you can prove that those particular Lindens that were converted to cash came from that particular avatar sale, no dice.

Now on the IP side of things, Rowling may have something to say about there being a 'Harry Potter' avatar in SL. But even if she did, she'd first have to send LL a 'cease and desist' order. They have to be given a chance to comply before they can be hauled into court.

Now -- if they ARE notified and they don't do anything about it -- THEN they open themselves up to liability. For this reason, most online games such as this are pre-emptive and make it policy that any such infringement is verboten. Prevention versus cure.

With all this said -- LL would be hard pressed to cull all potential infringements from the metaverse at this time. Do you understand what kind of manpower that would take? And time? At any rate -- Failing to act prior to notification is not actionable. Failing to act after notification is actionable.

I'm sure your concern for LL is genuine, but let's keep the facts straight -- they cannot be held liable for what their players do until and unless they actively promote infringement or actively support it. Those two sets of criteria are very rigidly defined and while yes, anyone can drag them into court -- no one is going to WIN unless and until they can prove those two to the law's requirement.

Of course, if there is ever precedent set for virtual currency having real world value, it all changes.

The law does not differentiate between US currency and equivalents - for obvious reasons. If you were given gold instead of USD then the market value of that gold is used to determine the total value of your particular activity. I think with the GOM in full view it would be trivial to make an equal case for L$.

The courts are not completely brain dead, after all - they can do math.