Second Life Sued For Allowing Sale Of Impostor Virtual Goods

I don't think he is either, and I don't see how any part of the complaint shows otherwise.

One thing to keep in mind about court pleadings is that they are not just for the court, they are also negotiating tools. Bringing every credible claim- even if you ultimately think it's a long shot- helps your bargaining power.

Plus, when attacking a corporation that probably wants to hide its internal workings because those internal workings are shoddy, you want to make it clear in the initial proceeding how much information you are going to obtain about those inner workings in the course of the litigation. A win in court for Linden Lab based on legal technicality isn't much of a win if, in the process, the public finds out information that confirms the Mickey Mouse operation that most of us suspect Linden Lab is. Corporations become much more willing to settle if their managers risk being exposed as clowns.

And as a legal matter, though it depends on the court, generally its much better to plead everything and have stuff knocked out, rather than to plead too little and try to add more later.

That's why, even if the failure to protect from trademark infringement is the core of the claim, the initial pleading is going to set forth facts to support lots of other claims.

It's an interesting issue, because courts haven't taken virtual products/services very seriously so far - a fact which zillions of lazy, small-time crooks have used to their advantage!

That's changing fast. The legal systems need test cases in order to formulate precedents for the very big money that will be represented by the virtual design sector in the near future.

Suing LL in this way was probably a smart move, as it's more straightforward - and higher profile - than trying to chase down the owners of theiving avatars.

As to whether LL, as provider of the merchant space, could be responsible for the copyright infringements: I don't know where US law stands on this but, in Europe, the answer is Yes.

The Community Design Rights code binds "designers", manufacturers, retailers and distributors with a far-reaching definition of intellectual rights that specificllay includes virtual designs. I don't know if it's been tested in this way yet. You can read more about it here:
http://www.harbottle.com/hnl/pages/article_view_hnl/691.php

Personally, I think those who rip off other people's work - whether for $1million or L$1 Linden - are, and should be made, accountable. They're only doing it because they think no-one cares enough to stop them.

Cherry.

:0 maybe perhaps 'with your free unverified account, you may receive items, but not give them away'?? and perhaps the opposite in regards to money... 'you may spend, but not receive nor cash out funds (except for what you transfer in purchasing funds via lindex/xstreet exchange)'? just curious of the permutations...

i agree, probably the primary prob with serial thieves is their intent to disrupt another's business, even if to give away freebies... the profit motive though is strong in them too, and they would take any route possible to funnel profits any way they can. so wondering about how to discourage that motive along with the former...

(i think maybe sometimes, as i read different replies, that others maybe come at the prob purely from structural/prim building and 'copybot' abuses; i'm mostly a texture artist and will probably always have that wide-open prob that's not just copybot-related... so i hope i'm thinking in broad enough a pattern to try to cover 'all the bases' lol ;0)

:0 on the 'limit number of transfers' idea... well maybe, but always seems like any limit comes off a tad arbitrary/irritating, at least to me, and open for abuse, no matter how limited... i'm more for a clean definition 'tiering' membership levels i 'spose. least that's how i feel about it...

p.s. and managing to do this without creating the huge 'turnoff effect' referenced in that article des posted the other day; hmm lemme find that again:
/327/31/339409/1.html

Going back to the permissions business: I don't think the perms attached to an SL artefact should affect the intellectual rights within it.

Some creators, bless them (and me), explicitly ALLOW re-use & redistribution. This is the only case where recycled work should be legal.

If work has NOT been clearly issued for re-use, then to re-use it an present it as your own work is theft. Simple as.

It doesn't matter what permissions boxes the creator ticked, if the item isn't 'open source' then it has intrinsic copyrights.

Maybe LL should simplify the permissions to just three: free-to-resell, free-to-give-away and neither?

Cherry.

Yes, but my point is that such is not extraordinary -- all business owners want to have a de facto monopoly on the things they make and sell, because that's the nature of business and capitalism.

As for the Eva Capalini situation, LL made the mistake of simply disabling ALL content listing that avatar as the creator, even including copies of the MLP scripts that she uploaded and compiled herself. In restoring access to the MLP scripts, LL apparently also reenabled access to the trademark-infringing knockoffs she made (the beds themselves, not just the non-infringing MLP scripts).

I don't see anything in the complaint which indicates that he doesn't see the difference. I think the difference he makes is clear. The problem is that people don't read through the legalese, or make assumptions about it which do not match up with the facts of the situation.



I complain about the Lindens all the time. I don't see any conflict, since it is well-known AND ADMITTED by the Lindens themselves that they have had issues dealing with IP infringement issues. They've been saying that they were going to do something about it for YEARS, and just recently reiterated the same kinds of things. They ARE doing something about it now, but I don't think it is remotely enough to stop this very kind of lawsuit from occurring, and gaining class-action status.



The only real "cases" I am aware of are the Capalini one, the Catteneo one, and the one regarding Corsi Mousehold. In all of those instances, it was mostly about them using his trademark to sell their products. I don't get the impression from reading any of the cases, or what he has said in public statements on blogs or elsewhere about them, that he "has it in" for anyone legally competing against him with their own products. I mean, if he was so vehement on putting an end to all competition, where are the lawsuits against the dozens of other sexbed creators? There aren't any. Only ones which either 1) illegally used copyrighted content (animations/scripts) from his products, or 2) advertised themselves prominently using his trademark(s).

I don't think that going after people who are proven to be infringers should be considered a "chilling effect" on legitimate content creation and sales. However, Linden Lab's bungling, ham-fisted approaches to fixing problems probably are. However, that's why they have got to move forward and improve. They can't keep sitting idly by allowing infringement to continue to run rampant.



I don't want anyone to "stick it to LL", in particular. I just want LL to get off its multi-year-eventually-getting-around-to-fixing-critical-problems-and-bungling-them-multiple-times-before-finally-getting-some-positive-improvement duff and do what they said they were going to do, what they HAVE to do, in order to remain both legal and pertinent as a platform.

As for the judgment, that's all I see the case is asking for: people to stop infringing his copyrights and trademarks.

That's why I proposed http://jira.secondlife.com/browse/SVC-701

This keeps getting brought up, and it's kind of pointless when at least half the vendors out there are using scripted vendors.

I'd rather go the other way, and put in a royalty field. So, for example, you can get a royalty whenever anyone sells a product using your stuff. For example, if I could set the royalty level on Flight Feather to L$10 I could retire.

Another point to consider is that, even if Stroker was stupid enough to want to squash all possible competition with any legal chicanery that he thought *he* could get away with, his lawyer *isn't* that stupid, and would avoid putting huge, gaping holes in his case which the judge and the defense would be prepped and ready to blast completely to smithereens once it got to trial.

Remember: Stroker didn't write up the case; his lawyer did. His lawyer most likely knows better.

I'd rather see a registry for business names in SL. Right now people copy product or store names in their ads with no consequences. With a registry, first user gets to file complaints to stop other people within SL from using it *and have it acted upon*, which is the important part.

You wanna start a sex bed store, or new club, find your own brand.

There would be instant squatting.

Oh, and by the way, something like 50% of the top business names in SL were already trademarked IRL before SL even existed.

Make it a concierge level privilege, or attach a fee to it, to prevent random name squatting. Oh, and for existing businesses, first one to make the product or use the name gets it (creation date, or land claim date would be good for that part)

Trademarks apply to specific industries, though. Unless a particular company had the foresight to register their trademark in the category regarding virtual world products, it is fair game for someone else to use the name/mark for it.

From reading over his registered mark, this was rather the impression I got as well. Which is insane since it would impact anything with a menu and animations including AO's, chairs, and any other type of furniture aside from just sex beds.

Are you referring to his registration of the mark as shown on the US Patent and Trademark Office on the website?

If so, all that does is to reserve the name "SexGen" for those objects. It has nothing to do with stopping people from making such objects, as long as they don't use that name.

Perhaps it would help if the complaint used the word "counterfeit" instead of "knockoff".

Obviously this was bound to happen. I think most of us saw it coming a mile away.

The DMCA process is almost useless the way the permissions settings are in SL. Ever tried tracking down a stolen item that was set as "Free To Copy"?

Kudos to Stroker and Nomine and I wish them the best of luck. Considering the ease of animation theft now in SL - I would look for more of these lawsuits in the future.

Just a few days ago a top ten items was selling through the roof on XSL that was filled with stolen animations. The fact that LL was profiting off of each and every sale certainly brings an interesting aspect to the whole debate.

Taken from:
http://foo.secondlifeherald.com/slh/2009/09/eros-llcshannon-grei-vs-linden-research-the-class-action-complaint.html

Page 11, items 51 and 52.





Perhaps I'm reading more into this than there really is, but from the actual written way it's put, he is trying to claim trademark for anything that temporary animates an avatar, which is exactly what all furniture is that offers an animation, and even AO's.

That's the "why you don't see anything in the lawsuit about wanting to stifle all competition" part. It's there, one motive behind the lawsuit - but no lawyer would ever make it part of the lawsuit because it's unreasonable and couldn't possibly win. It would also put a dent in the "class action" silliness and the illusion that's spreading that this is a fight over principles and rights rather than money. The lawsuit contends that the class includes thousands but I don't really think there's thousands of people in SL who own real trademarks on their "brands".

It's just dodgy wording in the SLH article. Eros secured the right to use the Sexgen name to describe the listed classes of products, that's all there really is to it.

That didn't come from an article though, but rather the actual court papers which I indicated exactly what part, and what portions in my post.

well its great publicity at any rate. long as The Lab doesnt execute that part of the TOS where they close stoke's account just caws! then its win win and stroke is a donald trump champeen of the lil man's rights.

pig squadron standing by for take off...chocs away lads.......

This sentence:

'The SexGen mark is categoriezed as one "[p]roviding ...'

is the mischaracterization from the article.

The registered mark doesn't provide any rights to do that list of things, it provides the exclusive right to use the word "Sexgen" to describe that list of things. That is all trade and service marks do, give you the use of certain words and symbols. Trademarks don't cover who can be in what line of business.

I have to flat say in the early days of sex animations there was Stroker, about 3 others and me.

TO my knowledge stroker never even ONCE did anything to attempt to shut me down or harm my sales that was not fair business practices (ie improving products, starting new product lines etc).

Every business person would LOVE to have a monopoly but most realise it is not going to happen. To my knowledge Stroker has never stepped outside the bounds of fair and appropriate business practices.

I m no expert, but my understanding is as follows...

The court papers only refer to Trademark and Copyright categories of intellectual property. To claim infringement by all objects carrying animations, or indeed by all beds carrying sexual animations, irrespective of whether they use the trademark or the copyright animations, would require a patent. As it is it only covers cases where the trademark is (mis)used and/or the animations are copyrighted by the plaintif.

Of course a patent may have been applied for, but it is unlikely that it could cover such a broad category. No patent is mentioned in the papers.

The registration of trademarks includes the definition of the scope of activity to which they apply. Thus the broad description is the definition of the scope of activity for which exclusive use of the mark is claimed, not a claim to exclusive right to make products covered by that description.

I stand to be corrected.

PS ... whoops Viktoria beat me to it.

Just reading throgh all this and it is scary on very many levels. One fact I did not see mentioned in here is that the Eros (Kevin aka Stroker)'s lawsuit against Leatherwood was won by default.

In other words, because the defendant did not show up.

As such, the judgement does not offer any enlightenment as to how this one will be resolved...

Such a fine line between protection of intellectual property and the need to share ideas and advance. Too little protection and noone wants to innovate. Too much, and noone can...