DMCA and Linden Liability

Maybe this is the wrong forum, but I wanted to say something about the DMCA. IANAL but I followed the progress of this legislation closely when it was passed.

There are two parts to the DMCA. One part criminalizes the use or trafficking in devices (or software) whose purpose is to defeat copyright protection. Copybot may fall into this category, although it has other uses so it could be argued that in itself Copybot is not illegal. This part of the DMCA relates to criminal law, and prosecutions need to be brought by the government.

The second part relates to liability of online service providers, and more specifically how they can escape liability for copyright violations committed by their users. Supose someone posts copyrighted content on a Yahoo message board for example. Is Yahoo liable? Not if it follows the procedures laid out in this part of the DMCA. Those procedures say that Yahoo has to publish contact information for claims of copyright violation. When it receives such a claim by a copyright holder saying that some content is infringing, Yahoo MUST take it down. The original poster may then issue a counter-claim saying no, the content is actually not infringing after all, and Yahoo MUST put it back up. The two parties (the end user and the copyright holder) then fight it out in court and Yahoo abides by the decision. In this way Yahoo avoids liability and cannot be sued for copyright violation.

The interesting question is whether, with all their talk of DMCA, Linden Labs means to invoke this part of the law. Suppose someone creates content in SL that is their copyrighted creation. Then suppose some other user steals and exhibits that content. Linden Labs could be liable for copyright violation! Unless it follows the procedures laid out in the DMCA. LL would have to publish a contact address for notification of copyright violations. Upon receiving such a notice, LL would be FORCED to "take down" the offending content. That might be a matter of suspending the account of the purported violater, or perhaps just removing the items in question from their inventory. Whatever, LL would be required to take whatever steps were necessary to stop the claimed copyright violation from going forward. At that point, if the purported violater wanted to contest it, he could file a counter-claim at which time LL would be FORCED to give him back his content, restore his account access, or whatever. The two parties would then go to court (I'm sure courts are going to love cases fighting over content that is worth a buck fifty!).

I don't know whether LL really means to take on this burden, but every time they mention the DMCA, this is implicitly what they are talking about. If LL wants to be immune from liability for copyright violation when its end users violate copyrights, it must follow this procedure to gain the benefits of the so-called DMCA "safe harbor".

I will also mention that I think most of what LL is talking about in terms of asking end users to resolve issues among themselves is not the DMCA at all, it is simple old-fashioned copyright legislation. Copyright existed long before the DMCA, and violators of copyright would still be liable even if the DMCA had never been passed. I would suggest that LL stop referring to the DMCA as a framework for resolving these difficulties unless or until they are willing to take on the burden described above of setting up a fully DMCA compliant complaint resolution process.

I think LL is simply stating that they're not the proper authority to rule on copyright violations whether actively (seeking out copyright infringement) or passively (taking actions based on reports) and (pure guess) if they make the wrong judgement they're probably opening themselves up for action to be taken against them.

Most of this seems to resolve around not knowing what a creator's responsability is, and what LL's is.

LL created the in-world permission system and each of us (I didn't actually check) agreed by accepting the TOS to not attempt to bypass those permissions. That fact gives LL the authority to take direct action on those using a permission exploit, but most people seem to interpret it as meaning that LL is going to protect their IP.

Someone please correct me if I'm wrong but:

Scenario 1 - someone finds that if their avie clicks its heels together three times they're able to magically copy any texture into their inventory

Scenario 2 - someone finds that they can run a program that lets them download textures to disk which they can then later reupload and use

In scenario 1 LL can take action because it's a violation of it's own TOS to circumvent the permissions system (or to use in-world tools to gain access to something you don't own). While it might seem like it's protecting someone else's copyright/IP in this case, that's not actually what they're doing because LL has no legal right/authority to do so. I don't think the offending party even has any legal recourse, because LL is free to set its own rules for SL, as long as they don't break any law by doing so.
In scenario 2 LL can't take any direct action because it doesn't actually break any of the rules it set out. Someone has to actively come out and file a complaint/DMCA which puts LL in a position to do something, if the other party chooses to contest, it can't do anything at all until it receives a court order.