Intellectual Property and Law

It would appear that the product that is copied was a Photo Sphere.

At this point I can see more clearly what Ishtara's getting at. Logically, there is only one way to make a Photo Sphere.... um, a sphere!

But by the same logic.. real life photo studios aren't sphere shaped, so the idea of making one that is a sphere, can be considered original IP.

If Lucas Film Ltd. can copyright things like a stormtrooper armor, a tie fighter or a Twilek (those guys with the two head tentacles), why not a lightsaber? Perhaps not the basic idea of sword with a laser beam instead of a blade, but the overall design of their movie props as well as the name.

Here's the original Reuters article:-



This is not a "knock-off maker", it's someone who is selling digital copies of an original Trademarked and Copyrighted product.

If you also look at the figures quoted in the article and do some simple maths (OMG) you will find that it is indeed a very serious issue to Stroker who is making a stand on an issue that should concern all content makers in SL.

another news link:-

Again, again, again...

You guys are confusing copyright of an artistic work with the patent of an functional object. You are saying that had there been someone that invented the VCR first, and had been selling them one at a time at flea markets, that no other company could have made the VCRs, patent or not. Do you really believe that? Oddly enough I can go to the electronics store and there are shelves of DVD players that look almost identical.

Copyrights on songs or books, even computer code is a different matter. No, you can't copy them word for word, even if it is on your typewriter or your guitar. Those aren't the laws we're talking about, though. This is an object, like a screwdriver. The only way you can stop someone from making a common object is to innovate new features and patent THOSE features.

Take the "gun". No one can patent a gun. There are literally tens of thousands of patents regarding guns. This is the equivalent of saying, even if true, that you invented the gun and no one else can make them. Well, obviously they didn't get their patent fast enough, since other people already are. Now the only thing they can do is bust the item up into the original innovations and patent those.

The fact is, though, inventers AREN'T protected like writers are. You DO NOT have a patent the moment you make something in the same way a writer has a copyright instantly. If you really want to be the exclusive producer of a new object, patent it. Otherwise, you're no different than untold numbers of garage inventors that made the world better and now live in anonymity.

Re Frob:



http://www.catb.org/~esr/jargon/html/F/frobnitz.html

P.S. Re:



I wasn't aware that it was possible to copy items in SL that the owner specifically designates not copyable.

Yes, a lot of products look alike. In some cases that's allowed or even needed, like your battery example, in other cases it's a copyright infringement.

I worked together with an interior design company once (designed their catalogs and website). They produced designer curtain rods, among other things. You can patent something as simple as a cone-shaped curtain rod finial in a certain color and finish, combined with a certain look of the bracket system. If anyone comes up with a copy of this rather basic design (only so many ways to design a curtain rod), they can sue and win. No matter if the copyist changed the size and dimensions a little and gave the brackets another wall base - it doesn't have to look EXACTLY like the patented original, only similar.
Something simple and basic like a cloth pattern consisting of black dots on white ground is a different thing of course. You can get a design patent even for that, but it's simply not unique enough to sue all owners of dalmatians.



Both a battery and the basic functionality of a DVD players are examples for industrial standards. Timex isn't allowed to imitate the almost exact design of a Rolex sans company logo, even if all 9V batteries look the same. And no one is allowed to re-engineer and mass produce a patented technology, even if all DVD players work the same way (have to work the same way in order to play DVDs).



Barbara / Barbie is a pretty common name. I can understand the judge's decision in this case, but that doesn't create a precedent. You could get away with a restaurant called "The Apple", but surely not with a restaurant named "Microsoft".



I don't know what sort of functions and features this photo sphere has. If it is a photo sphere at all; someone else said it would be a lightsaber, perhaps it turns into a cyborg anteater tomorrow. So far the OP didn't tell anyone what it really is, possibly with good reason.
Anyway, a unique functionality in combination with a certain design is protectable. Even something as basic as a wrist watch can be protected - let's say I design a watch that reads your daily horoscope, measures your blood pressure, contains salt and pepper shakers as well as a dental floss dispenser and can be opened to reveal a hidden cosmetic mirror. If someone created a watch with 4 or 5 of these 6 features, it doesn't matter what the rip-off would look like. If it's a wrist watch and has the same unique combination of features, which are rather uncommon for watches and not needed to design a working watch, there would be enough legal ground for the original designer to stand on.

You are right, you can patent anything you like so long as you can show through research that no one else was making them before you. What you guys are implying, though, is that you have a natural state of patent the moment you create an object, a la copyrights. That isn't so.

If the creator has a patent on this object or features of it, great. If not, and I doubt seriously they do, then anyone can make them. It's even possible that they could prevent the CREATOR from making them if they subsequently slip in an unchallenged patent.

So, if you want exclusivity, then do what it takes to get it.

It depends on the product. A texture is protected from the moment I create it. So are products based only on textures, like skins, eyes etc. Same with a sculptie... it's artistic work, like an illustration or a photograph. I know that I need patents for my scripted wares though, and some are already pending. Only design patents, but that should be sufficient.

From comments on the TBO article:-

3. Tateru, your article is very accurate. I would add however that these are digital duplicates. They have been reproduced through an exploit or bug. We intend to show proof in discovery. We filed two DMCA's with Linden Lab and they investigated them.

Posted at 2:18AM on Jul 4th 2007 by Stroker

You're taking it a step further in this case, though. Look at your skin example. Sure, the texture is copyrighted to you when you make it (GIVEN you didn't just copy the skin textures from Poser or Daz3d). You can even say the constructed skin itself is yours, sinceit is basically just packaging and branding for the texture.

BUT...

You can't make a single skin and say the very concept of "skin" is yours, and no one else can make skins at all. This is a competing product based on non-patented features. This person is claiming that the actual concept and features of the product are exclusively theirs.

The only way the concepts themselves can belong to you is if you've legally made them your IP through trademark or patent. If, as in the case of the sex thing above, this guy had nefariously copied the actual work electronically, it would be different. In reality, the features are different, the script base is different, etc.

Re Exploit or bug

Hrm, I know there has to be an escape clause in the EULA, but wouldn't SL bear part of the blame there? There is an implied assurance that an object can't be copied when they present the user with a "no copy" option. It seems the easiest way to settle this would be to simply ban the user that is using bugs and exploits, if that is indeed the case.

I get frustrated at this....

you cant say your have copyrighted a ball with a light in it, as its not possible. If the OP liked the "idea" made his own ... then fair enough.
I see very FEW original ideas in SL as everything has insperation from something else and many thing are copied and "reinvented" or "re invisioned". Most music IRL has three chords how many tracks i have heard with virtually IDENTICAL structures.

I know there are arguments about it being people business.... but hey this is a game... with millions of people, some skilled, some not.

Most of the OP's product is a sphere prim.... errr cant copywrite that.... hmmmm stuck a colour change script in it ... hmmm public domain.. errrrrrr.
I agree with a lot of peoples comments, creative works do require somesort of originalitiy and are not automatically granted copywrite becasue YOU have to PROVE you ARE the originall creator with some sort of time scales are applicable.

If we all start throwing our toys out of the pram JUST becasue somebody makes a sphere, cube, cylinder etc with various functionality then SL is a joke.

LL idea was that you have the ability to sell the product YOU make using THIER code and THIER prims.

If i find somebody makes MY product better than me ..... then i make mine better, its called competition. now if somebody says that THIER product is MINE then thats a copywrite issue. I feel the original poster is COMPLETELY within thier rights using generic tools and scripts to make a product, if the other product has propreitry code or eg uses a sculpured prim rather than a sphere then then one could say that its had creative input.

But lets be real.... OP created a highly similar product using freebies and open source code and is charging 200 for his creative time in putting it together

the supposedly original creator proberly did the same and is charging 1500 for a 200 product and now theres competition it leaves a bad taste in thier mouth.



all this over a game ...... its just silly

If that were true then the inventor of the cameraphone was an idiot for not patenting it. And now with the iPhone, would others be open to lawsuits from Apple if they used a touchscreen on their phone?

I belive that LL have been asked to deal with this matter including ARs and being given DMCAs but they have failed to do so, hence Stroker's recourse to the law.

Notwithstanding Linden's action or inaction, whichever is the case, they are two separate isues - he would (rightfully) take this person to court regardless of the outcome of the DMCA filing with Linden Lab. I seriously doubt Linden Lab are uninterested in this case, given that the product was ostensibly copied via some sort of exploit.

This would be the Apple who got into a dispute with Cisco over the name of the IPhone?

Didn't Tolkien copyright the word "Hobbit"? Everyone else has to call them halflings or something like that.

I'd imagine as SL grows or becomes more commercial, then these matters will become more common, it would be nice if there could be some sort of inworld arbitration on rip offs so that it doesn't get to the stage of courts. However I'd imagine that that can of worms is something LL want to stay well away from.

Did they? Do you have a link to more information? Everyone, my questions aren't rhetorical, I genuinely don't know and would love answers. As a content creator, I am keenly interested in this. Incidentally, thank you everyone who's posted links to articles about the Stroker case, I hadn't heard about it and am very interested in how things proceed.

http://www.macnn.com/articles/07/02/21/apple.gets.iphone.mark/

It was all resolved but from what I recall Apple were rather brash about using the name.

Well, that's where I'm not sure about it. It says that you must license everyone to use "your content for all purposes within the service". The question is, if in that context, "your content" could be taken to refer to the patent itself, or to the patented IP - in other words, the abstract idea. If that is the case, then "using" it would involve building it into a product or object (because how else can you use an abstract idea?).

I'm fairly sure that LL's intent in that case was that residents shouldn't be able to force other residents into legal paranoia over creating objects by patenting things. Gadget patents would also be dangerous to LL because they could potentially block them from including functionality in the viewer at a later date. Plus of course they're way too abusable - do we really think the US patent office knows about all the items that have been created in Second Life, in order to identify prior art? And in a world like Second Life where things are so easy to create, wouldn't pretty much *any* patent lawsuit qualify as a SLAPP?

Stroker's case seems to be a different issue.. it's not clear if someone actually made an original bed and claimed that it was "sexgen" (trademark infringement) or if they somehow copied Stroker's. If it's the latter, then if the copyable bed appearing was an SL bug, there'll almost certainly be a court argument that the lack of the "no copy)" on the bugged copyable version was taken as implying permission and thus the copier acted in good faith, possibly resulting in LL being brought into the suit, which LL will probably resist hammer and tongs...

Looks like we may be about to see our first test case with a similar issue"

"Second Life sex bed spawns virtual copyright action"
http://technology.timesonline.co.uk/tol/news/tech_and_web/article2025713.ece

There are many people who copy items from RL, including the person from whom the OP copied. She must have got the idea of a lightsabre from Star Wars, she didn't come up it from thin air. Then you could say the same about RL branded items like shoes or cars etc.

I have been visiting furniture stores for a couch - guess what - they are virtually all the same and so are the garden loungers, umbrellas etc.

Its not like the OP stole the script, he wrote his own, so I can't see the problem.

As if SL did not of late have enough embarrassing electronic newsprint, of all things, naturally it must be "The Sex Bed That Must Not Be Named" that becomes the in-world IP test case. More distressing for in-world content creators who aspire to protecting their IP rights is the detail of the complaint itself.

It's very likely that the claim for trademark infringement will be dismissed by the court because no attempt was made to register it until after the alleged infringement took place, and it is notoriously difficult to establish a claim that the complainant even *intended* exclusive use of the term prior to filing. The problem for the complainant is that, once this claim of trademark protection is dismissed, even if later registered by USPTO, the trademark will be very difficult to enforce.

The claim to copyright is a bit different, in that the right is assumed at time of creation, and is bolstered by the fact that the items are sold with no-copy permissions. Oddly, though, the only copyright being claimed in the filing seems to be for 2D artwork associated with the products; by now filing this complaint, future claim for protection of other aspects of the products may be undermined.

One claim in the complaint that seems very likely to succeed is essentially a claim of deceptive business practices, if it can be shown that the defendant explicitly represented that the alleged copies were authorized by the complainant's in-world company. Documented evidence to that effect would seem a pretty effective "smoking gun" on this count.

"Closely resembles" is a far cry from "copying through an explot".

Is there actually any claim that it's about copies and not just a competitor?

Yeah. The Reuters article links to a pdf facsimile of the complaint. It alleges that the defendant sold both unauthorized copies and derivative works, bearing the complainant's (subsequently filed) trademark.

Come to think of it, though, considering the content, how does one actually make an exact replica? There's nothing much to a sex bed except a proprietary (and, in my opinion, inferior) version of the opensource MLP script and a bunch of animations. The rest--prims and textures--are easy targets for the likes of copybot, but is there technology now for stealing scripts and no-copy animations? (Suddenly wondering if it may have been "an inside job"--or the complainant let someone see the "secret recipe" with full perms at some point.)

Ah okies .

Copybot could only recreate prims (it did copy textures in the sense that it simply reused the texture keys), but the open-source viewer or libSL can be used to recreate everything but scripts. For textures/anims/sounds it's just a matter of reuploading them. In that case you end up with the infringer's name on everything though.

If he got a hold of a full permission copy (exploit, glitch or was given one) I guess it would be more interesting (assuming he wins) since noone could claim that the permissions on any item convey any intent. Freebie resellers would loose their "if the permissions let me sell, then it's legal" argument.

A key point brought out in the Reuter's article - the SexGen guy claims to have sold 100,000 of the things, at a price close to US$45. That is some $450,000 worth of business, to date! His copier made the mistake of picking on someone with a financial interest that justifies hiring an expensive lawyer and suing hell out of him, and pricing his product at a level that would destroy the business. Not bright. Wonder what HIS lawyer will cost him, when they get to court...