The Alphaville Herald

Interview: Cory Linden on IP issues in Second Life

by Alphaville Herald on 12/08/04 at 12:42 am

Our legal editor Candace (a.k.a. Kale, a.k.a. Arboriasha Westerburg) has been exercised for some time about potential intellectual property entanglements arising in Second Life. Isn?t there an issue about downloading those Penthouse centerfolds as artwork for your club? And what about that music you?re pumping in? And given that your club is a revenue generator, well, you see where this is going. After bending my ear about it for an eternity I suggested she talk to Cory Ondrejka (a.k.a. Cory Linden), VP of Product Development for Linden Lab. The result is a Herald Instant Classic.

Candace: Cory Ondrejka, thank you for your time today. I know you’re busy and I really appreciate the opportunity to get your perspective on this important issue.

Cory: You?re very welcome.

Candace: You have a supremely fascinating and impressive background. Can you tell me a bit about your education, your previous experience, and how you ended up at Linden? I’d like to know a bit about that, and whatever you care to share about what motivates you to do the work that you do, what you enjoy most about your current position….

Cory: My degrees are in Weapons and Systems Engineering and Computer Science, both from the United States Naval Academy, and I?m also a graduate of the Navy?s Nuclear Power School. After I left the Navy, I worked on electronic warfare systems for Lockheed before moving west to work on arcade and console videogames. Just after I completed Road Rash for the Nintendo 64, I met Philip Rosedale, Linden?s CEO, in the fall of 2000 and decided that it offered more interesting challenges than creating PS2 games. I think that I was correct, because I definitely have the greatest job in the world right now. I get to work with incredibly smart, motivated people, write cutting edge code and explore the wide variety of legal and economic issues required to create the Metaverse.

Candace: I was motivated to pursue this story because there is a truly fascinating array of issues related to IP rights in SL. This specific game, largely based on uploading content and making personal creations, invites some serious conflict over who retains rights to what items. I’m not sure that people realize how revolutionary this kind of thing is and the vast implications it may hold for defining IP rights. Can you say a bit about that, the vision behind the creation of SL, and how Linden Lab originally thought this may work?

Cory: Second Life is built on a unique combination of streaming and grid-computing technologies that enable a completely dynamic world. Rather than shipping a disk of fixed content to the user, Second Life relies on a thin client and streams data to its residents as needed. That innovation led to the integration of collaborative creation tools into the world, which allowed residents to create, customize and transform Second Life. It quickly became clear that the success of Second Life would be dependent on the innovation of its residents. Innovation is driven by lowering the cost of information and building free markets. Both of these require property rights.

Candace: Now, the details are contained in the TOS, so we are all well-advised to check that, but can you briefly state the official policy as it regards uploading copyrighted materials and trademarks into SL, and also as it relates to players’ own protection of their creations?
Cory: The briefest, official policy for uploads is best stated by the TOS itself: ?[Y]ou shall not . . . upload, post, e-mail or otherwise transmit Content that infringes or violates any third party rights.? Much like the TOS of a hosting company, it makes it clear that it is the residents? responsibility to not upload infringing content. The residents? creations are owned by the creator, again much like a hosting company or an art tool. Although they grant Linden some rights, such as the right to use their creations for testing, they retain full rights to their creations.

Candace: I’d like to follow up on that last point, so people understand what rights Linden retains in regard to player’s creations. You mention the right to use them for testing. What about advertising for Linden or any other right? It really is a fascinating relationship between players and Linden in SL. Of course, when people are concerned about retaining rights, they’re often driven by the notion that someone else shouldn’t profit from their own work, and allowing Linden to have advertising privileges in regard to players’ creations flies squarely in the face of that traditional IP notion. I suppose the hope is that you’ll both benefit: players have access to the medium you’ve created, and you have (limited) access to use their creations. Is that a fair statement of the idea? I think it’s a unique situation here.

Cory: Paragraph 5.3 in the TOS covers this. Residents grant Linden Lab the rights to use their creations for marketing, testing and support. As you stated, this is advantageous to both Linden Lab and the residents.

Candace: So, without the permission of the copyright/trademark owner, one cannot upload that content. I can’t upload 5 minutes of a CD I own, for instance, in order to play it on my property? This can be somewhat confusing; a copyright gives one exclusive rights to use of an item (with a few exceptions). Many may think, “hey, I’m not selling this and making a profit. I bought this CD. Why can’t I upload it? Isn’t it just like playing the CD at a party?” Can you untangle this mess just a bit, so that people have a guideline about the proper items that may be uploaded onto SL?

Cory: Second Life restricts audio uploads to 10 second clips, since the primary purpose of these samples are as sound effects in world. In addition, unless the resident has exclusive rights to the content of the CD, uploading it would violate Second Life?s Terms of Service. Obviously, any discussion about first sale and fair use doctrines in a digital age would take up more space than we have available. There are certainly great online resources for learning more about these topics, such as Larry Lessig?s blog (http://www.lessig.org/blog/) and recent book ?Free Culture,? the Creative Commons website (www.creativecommons.org), and, of course, the United States Copyright Office FAQ (http://www.copyright.gov/help/faq/).

Candace: Yet, I’ve noticed that there is music playing all over SL. How does this work? Are there radio stations that people may stream, and how does that work? Relatedly, this seems to me to bring up a “Napster” sort of redux, only infinitely more interesting because of all the variety of content in SL. With the “Napster” debate, to the degree it’s found a happy resolution, we have these sites where people pay for access to a database of songs. Does SL have anything like that going on, or is that a possible solution? So, I’m thinking of a centralized base of files of copyrighted content that Linden Lab has gained the rights to use for a fee, and players have access to those files.

Cory: The music ?played? in Second Life is landowners allowing visitors to stream webcasts audio from other websites. The music itself is not part of Second Life, nor does it go through our system. It is no different than using Winamp or Windows Media Player to listen to streaming music. Second Life has not announced any plans to stream music directly from its servers.

Candace: I know these are really complex issues, so forgive me if we seem to be drifting into terrain that is not easily traveled (and forgive me for my technological ignorance on this issue, as well—- that would be great). This is all what makes SL such an exciting entity, though, I believe. I don’t quite understand the streaming aspect. Although it does not originate in your data, isn’t there a possible claim to be made that your system allows access to that content and that may be objectionable to those whose work is being streamed. So, I guess there are two ideas: One, people are just playing music and it just so happens that they are in-game but this is no different than hearing music people are playing on the street or something beyond your control or responsibility. The other idea is that since people pay to play your game and people are streaming music in the game, this is an objectionable practice. In this context, it’s no longer private use of media but it’s rather akin to a public use of other’s works, which is unauthorized (at least, that’s what those damn Interpol people at the start of my DVD’s always tell me). Can you see both of these perspectives as reasonable interpretations of this practice, and why?
Secondly, I know you’re working on ideas all the time. If you found that there was a demand for access to certain copyrighted materials that players could use in-game (music, for instance), what do you think of the option to find a way for Linden to gain access and share that with all SL players?

Cory: As I said, listening to web streamed audio in Second Life is no different than pointing Winamp or Windows Media Player at it. If options become available to deliver licensed music within Second Life and our users wanted it, we would certainly consider it.

Candace: In the event that it comes to the attention of Linden Lab that copyrighted content has been uploaded into SL w/out permission, what steps are taken? Does Linden Lab *only* act to remove the item if the copyright owner makes a complaint or will they act to remove the content under other conditions (e.g., a player simply brings it to the attention of the SL owners)?
Cory: Copyrighted content comes under the Digital Millennium Copyright Act (DMCA), specifically its ?Safe Harbor? provision. If a copyright owner feels that content within Second Life is infringing, she may submit a takedown notification, as detailed both on our website (http://secondlife.com/corporate/dmca.php) and in the DMCA itself (http://www.copyright.gov/legislation/dmca.pdf). This is the only method used to remove copyrighted material from Second Life.

Candace: I’ve heard stories that, for instance, one player was forced to remove a texture that was a trademark image from his property in SL. I was told that the item was discovered during a “sweep.” Is there such a thing; that is, does Linden Lab actively, periodically check the server to catch any possible copyright/trademark infringement? If so, that seems to raise an issue regarding privacy and people’s data on the server. Can you speak to this?

Cory: Trademarks are different, as they don?t fall under the DMCA. Instead, if a Linden employee sees a trademarked item within Second Life, we will remove it. We do not conduct sweeps, as this is not possible within a world as large and dynamic as Second Life.

Candace: Can you say a bit about the problem of creations/textures allegedly being stolen by one player from another in SL? I’m not sure if you’re aware of them, but I believe there is even a group of players (RATE) whose mission is to help players protect rights to their own creations. How big a problem is that, and what is Linden’s policy here?

Cory: As in the real world, it is not possible to prevent all infringement. Bugs, user error, technical proficiency and the analog loophole allow every type of media in the real world to be copied. Copyright law provides a framework for dealing with potential infringement. Remember, that copying is not necessarily infringement, since fair use may apply.

Candace: So far, I hope we have some greater insight into the official policy as it relates to IP issues. Often the official policy doesn’t exactly fit the needs of what’s really going on in a game. I’d like to have some thoughts on how things are really shaping up in SL, as it relates to IP rights. Is this a major area of concern, and is a lot of infringement allegedly occurring right now? Without divulging any specific details that I understand you cannot, can you give me a look at the big picture? What is the size of this problem right now? (E.g., How many complaints of various types is Linden Lab dealing with daily, is there active litigation on these issues, what is being done currently on this front?)

Cory: Despite the nearly 1 million player-to-player transactions and over 100,000 uploads per month, infringement is a very small percentage of total customer support incidents, so it is not a major problem. However, we are working hard on a major revision to the permissions system that will utilize Creative Commons, simplify the system overall and provide a better balance between protecting creator?s rights and protecting the flow of knowledge between users.

It is true that digital worlds have the potential for infringement. In fact, because digital worlds ?fix? actions like talking or dancing that aren?t fixed in the real world without the aid of a recording device, many creations that aren?t normally copyrighted in the real world are copyrighted in digital worlds. However, it is critical to remember that intellectual property law exists to create a balance between creating economic incentives for creators, through the creation of temporary monopolies, and the overall benefits to society, through the sharing of information and allowing ideas and technologies to build on the past. Just like in the real world, digital spaces will have residents act against infringers when they have economic motivations to do so, not solely because something has been copied.

Candace: You bring up a number of fascinating points here; chiefly, the different types of “property” that this medium allows. How difficult do you think it will ultimately be to protect these unconvential types of property? Do you think it will be difficult to make courts understand the unique nature of such content, for instance?
Also, although it’s not a major problem, do the infringement complaints seem to be rising and do you think that as the game grows, that will become a greater problem? If I may, what would you deem the toughest obstacle right now in SL, from Linden Lab’s management perspective? Finally, what are the numbers in terms of subscription and growth. Is the growth of SL meeting or exceeding your expectations?

Cory: The debate about whether digital goods are property has been covered quite well by Greg Lawstowka and Dan Hunter (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=402860) and while there may be some debate about whether items in other MMORPGs meet their definition, since all those items were simply made by the developer for the temporary use of the player, it is clear that new creations inside Second Life meet the various historical and philosophical definitions quite well. Certainly courts will take time to fully understand this, but intangible items have been property for a long time.

No, infringement complaints are not rising. It is important that Second Life make good decisions about IP in order to avoid problems in the future. We are very pleased with Second Life?s growth.

Candace: Finally, I’d like to end by looking at the future. I’ve always been torn by this feature of Second Life. On the one hand, you have this really revolutionary game that seeks to protect players’ creations. Yet, if people aren’t allowed to upload creations/textures/files, many copyrighted, then the game could become seriously stagnant. It seems that something has to give. Facing this complex issue, how can you keep the game thriving and interesting without facing massive, crippling copyright infringement entanglements? In the future, as this game grows, and more and more uploads and creations appear, can this realistically work?

Cory: Second Life does import quite a bit of data from the real world and, if anything, Second Life?s support of real-world IP increases the available content set. It allows artists and creators in the real world to freely import their content, which they would be less likely to do if they were forced to give up ownership of it. Also, moving forward, residents will need to get more ability to shape the rules within Second Life as they continue to make the world their own.

Also, in the future what you will see is Second Life consuming less real-world content and creating more content internally, much of which will be exported to the real world. Second Life has important innovation advantages when compared to the real world. Zero marginal cost of reproduction, extremely low communication and travel costs, available capital and reduced capital requirements for business growth, property rights that can be tuned to maximize creativity and fluid, vibrant free markets. Second Life is a place where the only limits are human creativity and time.

Second Life already has thousands of residents actively creating within the world, a number similar to the largest open source development projects, and Second Life is rapidly growing. So rather than looking at a future where importing content is the limiting factor, look to a future where economic and legal connections create a better place to live, work and play.