Eros, LLC v. Linden Research: Initial observations
by Jessica Holyoke on 18/09/09 at 7:30 am
by Jessica Holyoke
The metaverse is still buzzing with the news of SL Resident Stroker Serpentine filing a class action lawsuit against Linden Lab. After reading the complaint, a number of things pop up. As Benjamin Duranske used to warn on Virtually Blind, please remember that this is an active case and situations and facts can change at any time. Also, do not take this as legal advice. If you have a specific legal question, seek out your own attorney.
The first thing to bring up would be paragraph 40 in the complaint. It starts with "Plaintiff did not grant Linden Lab any license, authorization, permission or consent to use the pirated goods, services or works." It references this part of the ToS: "Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law."
What it ignores is the following part of the ToS; " Notwithstanding the foregoing, you understand and agree that by submitting your Content to any area of the service, you automatically grant (and you represent and warrant that you have the right to grant) to Linden Lab: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) use, reproduce and distribute your Content within the Service as permitted by you through your interactions on the Service". What this means is that yes, content creators retain intellectual property rights, but you granted Linden Lab the right to make copies of your work that you uploaded.
To me, the complaint could have included a breach of contract or license on top of everything else, because if Linden Lab is allowing people to make content outside of what is permitted by you and your interactions, its a breach of the ToS. But then you have to point out the section where the plaintiffs grant a license to Linden Lab regarding their work.
Speaking of plaintiffs, that is another important issue in the complaint. A class action has to allow for similarly situated people suing in a sense all together against another group of people.
In this complaint, that class is the smaller group of people that in general, have creative content or use a trademark on SL, registered that content with the U.S.Copyright office or registered their trademark with the Trademark office and had their property infringed upon. How many content creators do you know registered their work with any office and had their work infringed?
Note that the complaint is trying to establish the pseudonymity of SL as something precious for content creators but unnecessary for alleged infringers. Paragraph 31 in the complaint laments how if a content creator files a DMCA notice, if the infringer files a counter notice, then the content creator has to reveal their real life information. Which makes sense, if someone is possibly laying a claim to your content, then you need to know who that person is. You cannot be anonymous and sue someone. Here, the complaint is arguing that because someone is on SL, the normal litigation channels shouldn't apply because plaintiff pseudonymity is so important while the system needs to be upgraded to protect theoretically both plaintiff and defendant pseudonymity.
Another thing to look out for is, what winning looks like as far as DRM's go. People argue that if you can see it, you can copy it. In fact, it goes one step farther, if you see it, you are copying it. If you see me in world, you are copying onto your computer whatever content I am wearing, clothes, skin, hair, shape. The user has the option of turning off that ability to create a copy of essentially me, on their screen.
The only way to prevent copying in a technical systems sort of way would be to limit the open client aspects of SL and to prevent Copybot from functioning through its scripting. If there were a person aspect to the DRM, making SL like There.com, then every upload would have to be approved. Imagine everything you have every loaded, every picture, every texture, being subject to review by a Linden.
Lastly, while Linden Lab is the defendant here, many of the other Grids work on the same technology base as Linden Lab, the Gor Grid, Central Grid, Legend City Online, the other OpenSim worlds. What Linden Lab might decide here could dictate what the other grids do in order to protect their content. Or worse, Linden Lab comes up with a proprietary DRM that causes content creators to stay on SL and not migrate to other worlds.
Strokerisanidiot
Sep 18th, 2009
Nobody but attorneys win in class action suits. if LL loses, expect everyone on the grid to be charged $ to play to pay for this stupidity.
Jumpman Lane
Sep 18th, 2009
@Strokerisanidiot yup! only the attornies win, and perhspa Ol’ Stroke himself. This publicity stunt returns him to ARL media prominence. He has that since of championing the rights of the little man (Hot damn he’s a hero!). Yet, look at the effects on US, the residents of Second Life, irrespective of wheter or not The Old man wins or not. Linden Lab has a history of overreaching, over reacting in its anticipation of govt regulation or costly litigation. In short THEY MEDDLE (for good or ill) on the grid. (Gambling Ban, age play ban, banking ban etc. etc.). This lawsuit can only result in more stringent Linden intervention in our Second Lives. (Thanx Stroke!)
DO people actually steal Ol’ Stroke’s content and resell it for a profit. I know for a fact that they DO. Cheergirl Allen (one of his minions and a former pal of mine) IMED me one Saturday bitching and moaning about some crappy yardsale where her new sexgen sex somthing was for sale at a discount, one item at a time over and over. More of these discpounted items had been sold than Ol’ Stroke and Cheer herself had sold. The content had been stolen.
I saw a story in it, but not on the scandalous scope of our own slut magazine so I IMED my pal Pixeleen Mistral and told her all about it. I even went so far as to tp Pix to this yardsale which was a haven for content theft (as itens that were non transfer like sine wave dances were for sale at a huge discount alongside other purloined goods). As Pix and I yapped and pieced the story together an even better sorty emerged. Cheer mentioned to me that all the rezzed Sexgen beds atm had been borked by an absent-minded pesky Linden, and Ol’ Stroke was keepin mum about it. I mentioned allthis to Pixellen who spoke with Cheer and Stroke and broke THAT story instead). My POINT is not that Jump Lane is sittin pretty in the midst of all this SL DRAMA or even that Ol’ Jump is privvy to all sorts om monumental happenings. MY POINT, is that I am CONVINCED that Stroker Serpentine IS an injured party in this matter. I am CONVINCED that there are evil forces which SHOULD be brought to justice. Yet, I’m also convinced that suing the Lindens is viewed by the Eros camp as a publicity stunt and not a true means of addressing their LEGIT grievances. Weeks ago a mutual pal mentioned to me (heheh ok a Slut Mag spy! Yus I have spies everywhere!) that Stroker had something HUGE in the works that would return both him and his brand to relevance again. (In that my pal was correct. Congrats Stroke
). The result for the rest of us is not so cheery!
If Linden Lab institutes one unpopular, intrusive, draconian measure, or suffers any undue financial loss passed on to the rest of us, or god forbid, Second Life is regulated out of existence out of a misguided desire for rl and sl publicity, PUBLICITY! Then we all suffer because of the misguided meglomania of a second rate, overpriced sex-bed’s theft? (I personally declined to buy one at a huge discount at this yardsale because it was crappy, have spent hours wandering through the Eros mainstore willing to pay ANY price for that next great sex object but walked away because they were too crappy, gave my dragon sexbed to an old pal who didnt use it because there is way better stuff, AND I personally have always admired Ol’ Stroke: so I dont feel so bad characterizing it all thus).
Point blank I side with the Lindens. I make my stand with Linden Lab. They are not the proper target in any fight to champion ip rights. They are not the proper party from which to seek legal redress in any court of law concerning ip rights in their world. Linden Lab has unqeustionably made good faith best efforts to protect the property rights of creators using their service. Period. Requiring, anything else from them beyond the already well established channels of combatting content theft would subject us all to needless, draconion rules, RULES so that one man’s EGO may be satisfied.
I am on the RECORD in my opposition of content theft. ON THE RECORD in MY fight against the content thief Chelsea Malibu, of the now defunct Mountainmeister LLC, form business partner and associant and minion of Stroker Serpentine. Chelsea Malibu STOLE Redgrave Skins and passed them around SL and the Eros Empire, a known fact! So this whole sanctimonius cloak is a bit natty.
I cant put it any better: Yay Linden Lab! Boo Eros!
Sinden Lucks
Sep 27th, 2009
People don’t get it. When you sign up for Second Life, they own your goods, own your content, and own your ass.
That is the TOS.
Derek L
Oct 1st, 2009
No, it doesn’t ignore that part of the ToS – it treats it as what it is… irrelevant.
That second part is what allow LL to store your creations and serve up copies of them via the client. It does not allow other users to copy or resell those creations. It’s the same way the copyright notice at the bottom of this page registers your ownership of the content, and while it’s legal for me to display it on my screen, it’s not legal for me to cut and paste the text and claim it as my own.