Intellectual Property : Compiling Links to Threads

Every week or two, a thread is begun on the issues of intellectual property ("IP" in Second Life. They tend to rehash the same ground, and include some informed opinions and references that might be valuable to collect in one place. They are scattered in various open forums and tend to scroll away, then reform, like weather systems. I ran a search on "trademark" and got over 200 threads.

Please use this thread to mention and link to ongoing threads about IP in other forums.

Some quick over-simplified background: IP law deals with four separate types of property that is intangible but protected under federal, state and international law. Because the TOS make SL subject to California law, they apply here, even though enforcement can be a challenge because of the small stakes now present in SL commerce.

Patents: Protect the right of an inventor to exclude others from using an invention. Granted by federal and international law. Requires government issue of a patent after a formal application. Patent applications take months to prepare and large sums for attorneys fees. May include a "business method" if reduced to a machine or software process. Has a limited lifetime, after which anyone can freely use the patented invention. Violation of patents can lead to civil and criminal penalties. In the US, governed by the Patent Act. The now-expired patent for the method of forming those pillow-shaped shredded wheat biscuits is an example.

Copyrights: Protects the rights of authors of music, writing or art to their original works. Subject to rights of "fair use" that have complex limits. Arises automatically the instant an original "work" is created. No application or registration is required, although registration of a copyright adds some advantages. May apply to software code. Does not apply to inventions. Enforceable in the US in accordance with the Digital Millenium Copyright Act (DMCA). TOS invite copyright owners who believe their rights have been violated in SL to file the DMCA notice provided for in that law. Has a limited lifetime, but longer than patents. Violation of copyright may lead to civil and criminal penalties. In US, governed by the Copyright Act. The text of "Harry Potter and the Sorcerer's Stone" is an example.

Trademarks: Protects the rights of those who have used a particular "mark" to identify the origin of their goods or services. That "mark" may be an ordinary word or symbol. Trademark rights arise from use, not creation, that associates the mark with the origin of the goods or services in the mind of some part of the public. Registration of trademarks with the government is not required, but provides distinct advantages. Trademark rights may last indefinitely, but can be lost if the mark becomes generally used to mean the generic version of the product or service ("genericide", such as "aspirin". Use of a trademark by someone other than the owner, even for a non-competing product, may constitute "trademark dilution." Violation of trademark may lead to civil and criminal penalties. In US, governed by the Lanham Act. "Apple" is an example of a trademark that is lawfully used by different owners to identify different goods (computers and music).

Searching possible TM registrations at USPTO.
The USPTO runs an online tool called the Trademark Electronic Search System (TESS).
To use TESS to research trademark status on any text string, and find if it is registered or if an application for registration is in process:

1. Go to www.USPTO.gov
   
2. In the left column, find and click on "Search" under "Trademark"
   
3. In the resulting menu, click on "New User Search Form - Basic"
   
4. Enter the term in the "Search Term" box ... leave other defaults
   
5. Hit "Submit Query"
   

More advanced search paradigms, including Boolean and free-form, are options alternative to "Basic".
For example, if you enter "Second Life" (with the quotes) you should get 12 items in the list. The list will give you the serial number and the registration number if registered. Click on the various entries to see details of that file record.
Some of them are "dead" or abandoned marks once owned by others.
Some are marks of others (e.g. furniture refinishing)


Trade secrets. Protects the rights of those who have a secret that gives them an advantage in business. Not registered with the government, but protected by state and common law. If the secret is disclosed, the owner may have a remedy against one who disclosed it without authority, but once it is no longer a secret, trade secret law offers little protection. May last indefinitely. The formula for Coca-Cola is an example ("Coca-Cola" is a registered trademark).

Good discussion of how LL will act to take down SL items that violate famous trademarks like Coca-Cola, Firestone (for tires) and Craftsman (for tools), includes some efforts to explain the differences between patents, copyrights and trademarks in SL context.

"Change to LL policy on Copywright issues?" found at:
/120/99/64533/1.html

Quick slap-down of a residents request for a Spiderman avi. Thread ended with a vigorous scolding about risking the righteous anger of Marvel Comics, owner (and vigilant champion and protector) of the valuable and famous "Spiderman" registered trademark, and a closing admonition for folks to create new stuff.

"Requesting Spiderman AV!" :
/109/5d/18999/1.html

Extended discussion of trademarks, dilution, distinction from copyright, and value of creating new content and difficulty of enforcing trademark rights in SL. Side discussion of whether or not raising questions about TM by one other than the rights holder is "griefing" or "trolling," or whether or not those who create original content in SL have a legitimate objection to competition from those who copy FL registered trademarks for gain.

"Playboyz Trademark Infringement" found at: /148/35/77704/1.html

Discussion of possible ways to implement an in-world registration of business names and sims used as trademarks, and possible ways to enforce sanctions against perceived abusers (without LL intervention). Evokes some interesting exchanges about "abandonment" of SL marks through non-use for a period of time, plus a plea for "common sense" solutions not based on "RL" law.

"SL Business Register" found at: /108/b4/80907/1.html

Back-and-forth over a SL retailer's promotion of T-shirts, with admission the designs and slogans on them were copied from a RL T-shirt sales website. Within a few hours of the original posting, the SL retailer said she'd taken down the shirts.

Some posters flattly declared the copying to be "illegal," while others argued that style copying of clothing is not illegal, because clothing designs are not copyrightable, and that copying of slogans is a more gray area because of the potential of trademark protection. Some discussion over use of clothing logos or copyrighted or trademarked slogans or pix on the T-shirts.

Includes cut-n-paste of TOS re DMCA notices, and several well-informed opinions distinguishing copyright and trademark issues, and the difficulty of copyrighting short phrases, including reasoning and citation of authority.

Especially useful is a post that includes links to explanatory pieces on the websites of the Copyright Office, USPTO and Stanford's Fair Use service:



Above from "Real nice blatant design ripoff there" found at:
/108/ce/81136/1.html

"Is Second Life a Registered Trademark"
at: /148/14/81328/1.html#post851644

Discussion of the trademark registration with the USPTO of "Second Life". Includes instructions on how to access the online system for searching for marks with pending or issued registrations, using "Second Life" as an example.

Linden Labs updated their position on copyrighted and trademarks in game. The posting includes some links for basic information and searching of intellectual property law and the status of existing marks. TRADEMARKS AND COPYRIGHT IN SL (revised May 2, 2006)

Frank

That post clarifies the LL postion on the issue, but offers little hope to the average content creator in SL looking for LL enforcement to protect his IP against unwanted copying by other residents. The LL guidelines sound more like 'play nice':

LL's policy makes sense, as LL is a business, not a police force. Even the US government, which has enforcement powers under the Lanham Act, uses them sparingly, and usually only in support of major rights holders (Microsoft, Prada, etc.) whose trademarks or copyrights are being infringed flagrantly by pirates. Others need to rely upon the right of civil actions to recover damages and attorneys fees provided for in the Lanham Act and the DMCA. Look at the recent actions against music pirates for examples.

Those same remedies are available for use by rights holders against infringers in SL. Whether the rights holders choose to exercise them (not free) is up to them. Mere complainers rarely get action, unless they are prepared to fire up the force of law. That has costs in money and preparation, but that is reality.

Frank

Thanks for compiling this thread Frank, very handy

.
My pleasure. Glad to be of some modest service.

~ Frank ~