Copyright Violation - Threat to SL existence

Well, this issue is the very reason I pulled down my art gallery. I'm putting it back up, but not going to be selling the items. Under the same type of thought behind a website (as mentioned above). However I would take any picture down in a heartbeat if the creator had an issue.

It's a weird slope in a new medium. I'm keeping an eye on this issue closely though. And yes, for those who feel their copyrights have been violated, the DMCA does exist.

We have been having this very discussion on my old guild's board. One of our members, who is also an attorney, looked up the definition of "public performance" which is a key to determining copyright/trademark infringement:

Using that definition, it sounds to me like SL qualifies as "public". The issue here, it seems to me, is not whether there are trademark infringements in SL (there ARE), but whether the infringed parties feel it's worth going after.

A good case can be made in court that $Lindens have real world value (how many stories have been in the NY Times about SLers who earn their living here? How many snotty kleenex has Anshe sold?) There has already been a court case in China where a man sued to get back a magic sword he lost in a game, and he won. Virtual property is new ground that the law is still breaking into, but it wouldn't even be an issue if there was any doubt that SOME standards of virtual ownership are going to stand up in court one day, or that there will be clearer laws written on determining virtual infringement vs. real infringement.

As a result, many of the ideas I'd had for clothing items are going to either be given out for free or put on the back burner in favor of original stuff. While it makes my SL job harder, I don't know that this is necessarily a bad thing.

Nice link explaining how Music Royalties Work

Cindy

SL definitely does not qualify as a "public performance" since you are requied to pay LL money in order to access it, unlike the internet.

I ran into this problem when I was working with an anime club and we contacted various anime distributers to see if we could show them publicly. They informed me that, legally speaking, as long as anyone could come and see and did not have to pay a fee to watch, it was ok and they would actually help send things to support it. If they paid a fee to watch, then we would be in legal hot water and would get some legal paperwork served us if they found out we did it anyway.

If SL was open to everyone (even minors) and there was no fee involved, then yes. But as of right now, membership is exclusive to adults willing to pay an entry fee.



I doubt copyright/trademark holders, should they be let in on the secret of what's going on in SL, share your point of view. The fact is that there is a lot of RL money to be made in SL, as evident from a lot of the news coverage focused on SL lately. You mean to tell me that a corporation wouldn't think twice about twisting this into, "Well, some may be earning money legitimately, but this is just proof that money can be made using both legitimate and infringing uses, and there are those who are benefiting monetarily from our hard work, and we demand repayment for lost sales!"

This goes back to a comment I made earlier about suing ingame residents for the material ingame, since there is a very public RL value to things ingame.

Honestly though, I doubt any of this will come to pass unless someone actaully goes to report them to a lot of official channels, as SL is very much a niche market and is well below the radar compared to various P2P apps which are holding the spotlight right now. However, should a couple of enforcement companies get a hair up their butt to actually explore SL and figure out how much infringement is going on here, they would have a field day.

First of all thanks for the detailed information.

I left most of it quoted for reference.

I have already said elsewhere that I also think I over-reacted a bit.

The difference between trademarks and copyright is clearly crucial to the whole thing, and I am certainly not trying to shut down anyones "fan" art. I was basing my comments on the premise of "sales of other peoples work" but as you point out that is really only applicable to copyright not trademark.

I am not in fact a supporter of copyright law or the DMCA which is Draconian in my view. I do believe in civilisation and the law however, and don't like to see people basically mis-use or mis-apropriate the work of another. So that is where my concern came from.

Again this is more about Disney branded SL objects to me.
I find that personaly offensive as an artist and a shallow trick in terms of business technique. To me, these things are hardly "homage" to the characters in question (although they may likely be defended as such), they are a cheap trick to boost sales.

I am not sure if you fall into that category. Selling a lovingly re-created spawn avitar for instance is a different thing from that.

I *do* think that your convoluted legal arguments about what is "real" money, and what counts as "sales" are only technically correct. That is to say they seem to me to be a very particular legal stance that I would expect to be seriously challenged if it ever came to a trial case. SL is after all a unique situation. It is a server full of content, but it is not *just* that. It has other aspects that the servers in your comparison cases do not have.

It is really quite obvious for instance from the "common-sense" point of view, that yes, real-life money *is* being made on the backs of other peoples work. Anyone can see that.

I can see from your argument how the law does not read that way, but in my experience it is exactly these kinds of issues, where the "law is an ass," that comon-sense views contribute to it being changed. All one has to do is look at the bank account of the player with the Disney stuff and you can see that money is being made. All one has to do is walk around second life to see that real commerce is occuring.

I am not disagreeing with your argument particularly, just that I can see many angles that others would use to shoot it down in court and I would not assume that it will always be the case that things are interpeted as you lay out in your post.

For instance it seems clear that in many ways we are relying on being "below the radar" in SL. Obviously if i used my own talents to create a comic book character doll or costume in RL, and sold it, I could expect Marvel to come after me and there is no question that such a thing is really indefensible. Only an idiot woud open a real life store full of fake branded products or even unauthorised "fan" art for sale without expecting some consequences.

For me this boils down to the whole idea of there being a difference bewteen is "what is wrong", and "what you can get caught at", whereas for me wrong is just wrong. The person with the Disney branded store for instance, would have to be quite dim indeed not to realise that the second Disney sees this store, they will either ask for a cut of sales, or ask them to take it down. This person is being disingenious to imply (if they in fact do), that tehy dont know that what they are doing is wrong.

Taking the view that "until they catch me" I will do what I please, or "until they tell me to stop I am not doing anything wrong," is just lying to yourself at the same time as you are stealing the content IMO.

Finally, even though as you say making money off of the product is not crucial to the definition of trademark infringement, as you also note, it does exacerbate the case in a practical sense.

SL would be barren indeed if not for the fan art.
I intend to make some myself.
I might even sell it in a limited fashion to get my costs back.

But massive selling of branded items, even if it's fan art, *is* stealing. The trademark holders *can* get angry about it, and it is something I would like to see some rules develop about in SL before said rules are imposed from outside sources.

This issue has come up several times in the past. Has been more pages of posts then I can remember about it and I havent been here that long.

Of course Dianne's concerns and those of others is worth thought.

I do think it would be in everyone's best interests if players did not create content based on such reconizable themes such as Disney or Star Wars. The City Of Heroes Lawsuit kind of suggests what could possibly happen.

But of course enforcement of this or anything else thats infringing on IP rights is difficult.

Perhaps best is if the community encourages a sort of awareness and general agreement that its not a good way to do things.

Id be more intriqued by creations of characters such as Comics, ETC that are Exclusive to second life. (believe someone suggested Movies even)

Would really demonstrate imagination.

No, enforcement of this isn't difficult. It's just costly and inconvenient. Part of There.com's way of staying clear of IP infringement was having everything that was uploaded to the system had to pass through inspection. Mostly, this was due to behavior standards, but it was also used to keep non-sanctioned merchendice off the market.

LL *could* theoretically do this, but it would cost an arm and a leg in staffing costs, and your submissions could take weeks to see inworld.

However, it's the fact that LL *could* do this that, IMO, makes them liable in addition to those actually uploading the content. The reasons Napster got ground to the ground was because they had a centralized server that held links/locations to all the assetts of the server (which sounds identical to our own beloved assett server). They were held liable not because they didn't have a blocking method, but because they *could* have implemented one, were requested to implement one, and didn't.

The difference here is that LL hasn't been asked to implement such a blocking method yet. And with a network of less than 50K, I doubt this will be on their radar. Still, it entirely and legally possible, I would think.

Well costly and inconvienent Equates to difficult to me.

Lol since its difficult to get me to spend more money and wait in lines.

=)

An additional question ..

When I use something like Geo cities .. is Yahoo liable for the content I put on web pages?

How similar is Second Life to that situation?

And does the fact that any of this stolen stuff only "exists" in a closed system effect anything?

I mean if you have a Elmo backpack in game you dont really have an Elmo backpack. You have a little computer replication thats only useful in SL.

One misapprehension should be addressed here:

Copyright can be infringed even if the infringer only displays the material for personal use and does not profit from it in any way. Not selling stuff doesn't protect you from litigation. You may be liable for civil damages, criminal penalties, and absurdly steep attorney's fees even if you do nothing more than create a single T-shirt for yourself with a copyrighted image.

The takedown provisions of the DMCA are targeting towards ISPs unknowingly displaying infringing material. They won't cover you from prosecution if you're willfully and knowingly using copyrighted material. Fair Use as a doctrine was largely gutted by the DMCA, and if you claim it, you'd better be prepared to prove it in court.

Paramount and Disney are two companies notorious for aggressive enforcement. The RIAA are even worse, and have hit individuals with huge judgements for infringing music copyrights.

If you choose to infringe, you are taking a major risk that could at any time blow up in your face.

I don't like it that major corporations have the power and authority to ruin people's lives, but they do. The bigger the virtual world industry gets, and the more that players like Disney step into it (with ventures like ToonTown), the greater the risk that a company or cartel of companies is going to declare an RIAA-style jihad against individual users.

The court also tossed a critical calim relevant to this discussion: namely more than half of Marvel's claims against NCsoft and Cryptic Studios, including Marvel's claims that the defendants directly infringed Marvel's registered trademarks and are liable for purported infringement of Marvel's trademarks by City of Heroes' users.

In other words NCsoft will not be held directly liable for any infringement of Marvel Copyright propogated by the CoH users. This would be analogous to the LL position.
I also think the LA District Judge ruled that NCsoft was not an ISP for purposes of the DMCA. I could be wrong on this last point. Still the suit was effectively gutted, now they are fighting over some scraps.

Interesting stuff. I make random things like a Kamen Rider V3 avatar (a superhero character from a 1970 Japanese TV show) and the Orca (the boat from Jaws (1977?)) or stuff from WWII. I dont have any issues with making odd cult type stuff. But I try not to make things that are more current. Most things in game that I know I wouldnt make dont bother me. I do see things from time to time that really stand out and I wonder what the 'creator' was thinking. Like I saw a "B-Pod" (name?) for sale that looked exactly like the I-Pod and used exactly the same advertising. But at the same time the creator had to find ways to make it useful and functional within the SL world so maybe that is the clincher. Dunno.

You pay to get into a concert. Concerts qualify as "public performances".

How is SL different exactly, and how does paying a fee for an SL account make any difference in determining the nature of a public performance?


I think the Lindens' decision to release claims to intellectual property rights may have been a stroke of genius in this respect.

Cryptic Studios (the devs for City of Heroes ) designed and own the content of COH. The customization options built into the character creator allowed you to create a Hulk or Wolverine clone (of which there were thousands), even in spite of the EULA which forbade you to do so. And Cryptic went to great lengths to police the matter, arbitrarily altering players' names (to "Generichero1092" and costumes to remove the violations. (Talk about an enforcement nightmare).

But that lawsuit is instructive for us here. If you read this carefully, you see that the intent and awareness of the original software distributor, versus the actions of its users, is in itself critical in determining the matter:Federal Judge Dismisses Suit


If we apply that to Second Life, I think the Lindens are probably even safer than NCSoft/Cryptic because they are merely providing the platform and the tools. Infringements are occurring, not through anything the Lindens did or intended, but through the intent and actions of the users. A successful suit would have to provide reasonable proof that the Lindens were aware of specific infringements and did not remove them.

Cindy

imagine a court order to shut down SL caused by an RIAA or MPAA or Disney lawsuit claiming SL is like Napster or like those BitTorrent sites that got smacked recently. would it bring down all the sims? only the mainland? would private sims like the UC Davis research sims be exempt?

(edit - even a worthless lawsuit)

I would take issue with you, Diane, about selling a few items being okay. Selling ANY intellectual property not yours is illegal, whether done in a "massive" way or not.

Having said that, I personally think Disney, et. al., got no business poking their noses into our fun in our games. But the WOW experience shows they can and will.

As for putting everything through the LL strainer first, as There does, how on earth could that be done? I don't know how they make stuff in There, but I have been working on my same house for several weeks now. It could sit there, with something objectionable on it, for a long time, before I ever got to the selling point.

Do I understand the There analogy to mean, well, you would just have to go through the strainer before you try to sell it? Because see, we can build and have sitting for our own use whatever we want. In the case of the Disney merchandise store, that strainer would have caught that stuff. But not a house with a roof on it with Mickey's picture on it.

I would TOTALLY HATE it if we had to have things approved by LL before we made them (after we made them?) or whatever, whether to sell or for our own use. I would a jillion times more hate it if I had to pay for the privilege of having my items reviewed prior to sale, as I believe is the case in There.

coco

The main reason Second Life is not inundated with DCMA takedown orders and other legal action is because of SL's barriers to entry. I'm confident that if SL was as easy and free to access as the rest of the internet, the MPAA and RIAA would be filing lawsuits against SL "file pirates." Copyright/trademark cops are not scanning SL because it is a gated community, and they are ignorant as to what goes on inside the gates. Napster and P2P file-sharing was below the radar for a significant amount of time before the recording industry clamped down.

I wrote about SL vs. RL IP (IP = Intellectual Property) early this year.

Important point. Deep-pocket plaintiffs sometimes file frivilous lawsuits, knowing that the legal costs alone can break less-wealthy defendents long before the case is decided. So even if you've got a Fair Use claim to copyrighted material, you can still end up bigfooted into bankruptcy.

I sympathise with you Foucault.

The rules in these situations *are* Draconian and also completely slanted *for* corporations and *against* people.

I am hoping cause we share the same name that you aren't the person I have been so freely refering to (I dont want to know).

If you are, nothing personal, and no hurt feelings I hope.

I just have become soooo involved with SL, that the possibility of losing it over something like this kind of freaked me out.

Dianne

Ok, forgive my muddled brain. I was getting my logic mixed up where I was going with it.

SL does comply with the definition of "public performance." However, being that it is one, (I'm actually doing research now) it has to fall into either the teaching, educational broadcasting, or nonprofit exemptions, which for someone selling those items ingame, definitely doesn't qualify.

However, I would go on to say that this doesn't even fall under the public performance guidelines. Basically, it's like the people who work out of a van, selling imitation Disney shirts and merchandice. You think if Disney knew where they were, that they wouldn't have them arrested?

Main reason this has been a non issue was stated better by Zero.



If someone felt the need to make the legal people of these institutions aware of said things, SL wouldn't be the happy utopia it is now.

No doubt in my mind that's true. To me it's not much different than the crafts fairs I've gone to where people were selling Tshirts with trademarked designs on them -- I doubt that Mildred and Roy from up the street went to the trouble of getting permission from Disney to make those Mickey Mouse shirts.

The reality of all this, of course, is that while use of trademarked material in SL is infringement, it's another question entirely whether that company would see value in pursuing it. If it was widespread enough, we'd be looking at the consequences of failure to protect their own trademark but I doubt that a few thousand virtual citizens present much of a real threat.

Cindy

The other major bomb would be a shift in legislation around ISP responsibility for user-created content. The difference between ISPs and Linden Lab is that if an ISP goes down, you can switch service providers. If LL goes down, so does the universe (so to speak).

"If someone felt the need to make the legal people of these institutions aware of said things, SL wouldn't be the happy utopia it is now."

that potentially gives a disgruntled SLer some leverage. plenty of stories out there of fired employees turning in their corporate bosses for software piracy. imagine if some SL content creator gets ripped off (wasn't there a prim dup'ing tool available not too long ago) and someone treats their IP the same way they treat all other IP. sure, the creator could file a complaint with LL. but imagine the pirate sells just a few with full permissions. it's out. and that might destroy the market for that product.

i'm hoping people start self-regulating. potentially it only takes one pissed off content creator to screw things up in a major way. hell, it could be anyone. maybe someone who lost their land bc they didn't realize how the UI functioned.

That happened. See www.slexchange.com forums. The player in question accidentally sold one of his unique creations without setting the mod properties, and then saw pirated copies of his creation being sold cheaply all over the place. His only recourse was to give up the idea of making any $L on it and give it away with full copy/mod permissions free of charge. That put an end to the pirating.

Cindy

In general if diney finds out about a violation of its intellectual property, they will sue. The economics of litigation notwishstanding. This is the Disney Way of protecting thier copy right.

As it happens, the DMCA Was not designed to protect corporations, it protects the holders of copyrights. It does not offer more protection to Disney, it is just the Disney does not see money as an obstacle to enforcement.

Disney has, can and will, go after even the smallest mom and pop daycare with mickey and donald on the wall. As a practical matter, few other companies are the lions that Dinsey is, but Dinsey takes even the tiniest infringement seriously.

No issue I haven't opened any shops for long periods yet. Most of what I do load IS copyrighted or comes FROM copyrighted items but again if you came to me I wouldn't be rude about it just defensive. Also what I do upload or make, etc that is copyrighted I leave INTACT. Therefore showing the company that provided me with the information (eg if I upload erotica work I leave the website in the picture and 90% comes from newsgroups anyways).

Apple has sued people for less and for products that bear less of a resemblance to thier own.