The Alphaville Herald

Intellectual Property Party With FlipperPA Peregrine!

by Jessica Holyoke on 20/02/08 at 9:55 pm

Lawyers, content creators spend night together – discussing DMCA takedown notices

by Jessica Holyoke

Firday night party at the Peregrine pay-per-view salon

Friday night, FlipperPA Peregrine hosted an event to discuss in-world intellectual property protection with attorney Extinct Darwin. In real life, Extinct Darwin is Frank Taney from Buchannon, Ingersoll & Rooney – the firm currently providing counsel to metaverse clients such as the Electric Sheep Company and Stroker Serpentine. Second Life content creators showed up including Calico Ingmann, Nyte Caligari and pup Witherspoon.

Mr. Extinct Darwin started by discussing the four types of intellectual property – copyrights, trademarks, patents and trade secrets — and how they relate to SL. While waiting for resident questions, he talked about how the Digital Copyright Millennium Act (DMCA) works to protect copyright. Extinct discussed how you do not need to formally register a copyright in order to use the DMCA take down procedure.

Nyte Caligari asked why the Lab only takes down content seen on the Grid and not from the inventory of the offending resident. In contrast, if you upload copyrighted material onto MySpace, you are warned that MySpace may delete your account. In Second Life, the offending material is removed from the world, not from the resident’s inventory, so it can be taken back out of your inventory and put back in-world immediately. Extinct agrees with the proposition that the Lindens have not gone into inventory and that he doesn’t think that is living up to the requirements of the DMCA. He continues that the Lindens only remove an offending resident after repeated violations of someone else’s copyright.

Judging from the commentary accompanying LL’s DMCA policy, they reserve the right to terminate accounts if they observe repeated posting of infringing material. I think that following up on the infringer with repeat notices is one way to escalate the issue in LL’s mind. You can also, under the DMCA, issue a subpoena to LL requesting personally identifying information. This may or may not help if the person is using fake information, however. If that is the case your option would be to institute a lawsuit.

In the normal context, you could also sue the ISP (in this case LL) for failing to take reasonable steps to address the infringement. However, given that LL is the God of this virtual world, in practical terms that would probably be counterproductive, for obvious reasons.

When asked about the TOS patent clause that says residents cannot sue each other for use of their respective patents, Extinct replied that patents are different than copyrights — the first to invent wins. Especially in the area of software code, one could never know for sure that she was free from the danger of being sued for patent infringement. In LL’s judgment, this would create a cloud of potential litigation that might stifle the incentive to create within SL, hence the restrictions on patent claims.

Extinct was asked about the validity of note card agreements that come with certain purchases. His response was that to increase the chance that the agreement will be enforced by a court, you should make them agree beforehand. Courts like to see offer and acceptance, in basic contract terms.

Explaining how a court might interpret the SL permissions system of copy/mod/transfer, Extinct answered that the permission system is a licensing system. In copyright law terms, a license is simply permission to do something. So by making something copy permitted or mod permitted or transfer permitted, you cannot complain if someone does just that. However, if you withhold those permissions, then unauthorized copying, for example, would be outside the scope of the license and therefore infringing conduct. The issue of no transfer and how it relates to the First Sale doctrine of law was skipped over. (The First Sale doctrine says that when you buy a CD or other copyright protected work, you retain the right to re-sell that particular work. You do not have the right to copy it, but you can sell it, transfer it or give it away.)

In discussing content transfer from one Grid to the other, Extinct warned that the individual Terms of Service agreements must be carefully examined before taking your content from one grid to the other. If the content were significant, a separate deal might be reached regarding any Terms of Service.

After being asked about whether or not the Lab would ever stop accepting DMCA reports and whether DMCA applies to foreign creators, and if DMCA applies so long as the work is copyrightable in the US, the audience started asking if a class action would be an appropriate method to force the Lindens’ hands into deleting infringing material from the offending resident’s inventories. Extinct replied that “generally, to be viable class actions, the issues to each plaintiff class member must be common, and involve common legal and factual issues and the common issues must predominate over the individual issues. In other words, it must not appear to the court that there would be a multitude of individual trials. To fully go through all of the requirements as they pertain to this situation would take a while indeed.”